Joint Appendix — Teague v. Lane
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IN THE
Suprene Court of the United States
OCTOBER TERM, 1987
FRANK DEAN TEAGUE,
Petitioner,
MICHAEL LANE,
Director, Department Of Corrections, et al.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Seventh Circuit
JOINT APPENDIX
THEODORE A. GOTTFRIED
State Appellate Defender
MICHAEL J. PELLETIER
Deputy Defender
PATRICIA UNSINN *
Assistant Appellate Defender
100 West Randolph Street
State of Illinois Center
Suite 5-500
Chicago, Illinois 60601
(312) 917-5472
Counsel for Petitioner
* Counsel of Record
NEIL F. HARTIGAN
Attorney General
State of Illinois
SHAWN W. DENNY
Solicitor General
Davip E. BINpI *
Assistant Attorney General
100 West Randolph Street
State of Illinois Center
12th Floor
Chicago, Illinois 60601
(312) 917-2570
Counsel for Respondents
PETITION FOR WRIT OF CERTIORARI FILED AUGUST 10, 1987
CERTIORARI GRANTED MARCH 7, 1988
a
TABLE OF CONTENTS
Chronological List of Relevant Docket Entries
Transcript of Proceedings:
Defense objection to prosecution’s use of its per-
emptory challenges against six black jurors dur-
ing selection of the first panel of four jurors, Au-
gust 6, 1979
Defense objection to prosecution’s use of all ten
of its peremptory challenges against ten black
jurors at the conclusion of jury selection, August
Order of the United States District Court for the
Northern District of Illinois, August 8, 1984
Opinion of United States Court of Appeals for the
Seventh Circuit, December 30, 1985
Opinion of the en bane United States Court of Appeals
for the Seventh Circuit, May 11, 1987
Order of the Supreme Court of the United States grant-
ing certiorari and leave to proceed in forma pauperis,
March 7, 1987
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
March 16, 1977—Information filed in the Circuit Court of
Cook County charging Frank Teague with four counts of
attempt murder, three counts of aggravated battery and two
counts of armed robbery.
August 6, 1979—Jury selection proceedings conducted on
the information.
November 21, 1979—Teague was sentencea to concurrent
terms of imprisonment of 30 years on three counts of attempt
murder and two counts of armed robbery.
August 30, 1982—Opinion of the Appellate Court of Illinois,
affirming Teague’s conviction and sentence filed, Campbell, J.,
dissenting.
April 21 1983—Petition for I eave to Appeal to the Illinois
Supreme Cuourt is denied, Sir n, J., dissenting.
October 3, 1983—Petition for Writ of Certiorari denied.
Justice Brennan and Justice Marshall would grant certiorari.
March 5, 1984—Petition for Writ of Habeas Corpus filed
in the United States District Court, Northern District of
Illinois.
May 24, 1984—Respondents’ Answer and Motion for Sum-
mary Judgment filed.
June 22, 1984—Petitioner’s Cross-motion for Summary
Judgment and Response to Respondents’ Motion filed.
July 9, 1984—Response to Petitione. s Motion filed.
August 14, 1984—Order of District “ourt granting Re-
spondent’s Motion for Summary Judgmen: 1 entered.
August 16, 1984—Petitioner’s request for « certificate of
probable cause is granted.
December 30, 1985—Rehearing en banc ordered after cir-
culation of panel opinion pursuant to Circuit Rule 16(e).
May 11, 1987—Opinion of en bane Court of Appeals for the
Seventh Circuit. filed.
(1)
2
IN THE
CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CRIMINAL DIVISION
Information No. 77-40122
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff,
Vs.
FRANK DEAN TEAGUE,
Defendant.
REPORT OF PROCEEDINGS
August 6, 1979
. . * *
(97] MR. MOTTA: Yes, your Honor. At this time |
would move the Court for a mistrial. Your Honor, I
believe that the Court can reflect back and note that six
jurors have been excused by the State and I believe each
of those jurors was black.
I don’t see, and could not understand any other reason
to excuse those jurors. I don’t feei that it’s fair tactic
to use in a trial and on that basis I want to note my
objection for the record and move the Court to mistry,
that we may again resume with a new venire and select
a jury.
THE COURT: All right, I will deny your motion,
counsel.
MR. MOTTA: Your Honor, is the Court then con-
doning the State’s—
THE COURT: No, counsel. I just say at this time
it’s improper, and I nutice also that you have eliminated
one black juror yourself.
3
MR. MOTTA: That’s correct. Her husband was a
police officer.
THE COURT: If I would have been the defendant
I would have kept her.
MR. MOTTA: Her husband was a police officer and
with all due respect, your Honor are not the def2ndant
[98] but I would ask the Court to rule on whether or
not the State’s tactics—
THE COURT: I will merely deny your motion at this
time, counsel. We are only halfway through your chal-
lenges.
(Recess taken)
[177] MR. MOTTA: I also have a motion at this par-
ticular time, Judge, and I would ask—
THE COURT: All the jurors having left the court-
room and we are here alone with the defendant, and
counsel, you have a motion. Go ahead.
MR. MOTTA: As the Court is aware State exercised
10 peremptory challenges and each challenge excused a
black person. I feel that my client is entitled to a jury
of his peers, your Honor. I feel that he is being denied
this. I would ask the Court for a mistrial.
MR. ANGAROLA: We exercised more than i0 chal-
lenges. In fact we exercised 11 challenges and didn’t
just excuse black individuals. Counsel is incorrect when
he stats that.
In fact, your Honor, one of the challenges, peremptory
challenges exercised was against a white woman. In addi-
tion, your Honor, numerous individuals that were ex-
cused were of very young years. There was an attem)
your Honor, to have a balance of an equal number of
men and women as the jury is now |
seven men and five women sitting on the .
We feel that counsel’s motion is totaly imow@e
[178] MR. MOTTA: If I may respond to that bref)
your Honor, State exercised 10 perempto eng
4
all of 10 black people were excused; that their one
peremptory challenge for an alternate juror excused, I
believe. a white woman. I think the record will reflect
the ages and background of the individuals that were
excused. They were all to sit on the regular jury. I am
not talking about the alternate, the one white alternate
that was excused by the State.
MR. ANGAROLA: As your Honor previously pointed
out, counsel himself excluded a black, Mrs. McCleary,
your Honor, who was a black individual who was ac-
cepted by the People, and he excused her.
THE COURT: Counsel, I feel that it would appear
that the jury appears to be a fair jury. I will deny your
motion.
(A continuance was taken to Wednesday, August 8,
1979, at 10:00 o’clock a.m.)
5
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
No. 84 C 1934
UNITED STATES OF AMERICA ex rel.
FRANK DEAN TEAGUE,
Petitioner,
Vv.
MICHAEL LANE, Director, Department of Corrections, and
MICHAEL O’LEARY, Warden,
Stateville Correctional Center,
Respondents.
ORDER
Petitioner Frank Dean Teague seeks habeas corpus
relief from his present incarceration at the Stateville
Correctional Center, arguing that his conviction by an
all white jury in the Circuit Court of Cook County, I]-
linois violated the Sixth and Fourteenth Amendments
because the prosecution used all ten of its Pp» mptory
challenges to exclude prospective black jurors. Teague
does not allege that the Cook County State’s Attorney
systematically excludes prospective black jurors from al!
criminal cases involving black defendants. Relyipe upor
Swain v. Alabama, 380 U.S. 202 (1965) ‘use of peremp-
tory challenges to exclude blacks from service in ar
dividual ease is not a denial of equal protection absent
systematic exclusion), the respondent has moved for sum-
mary judgment.
Teague maintains that the Supreme Court has invited
a reevaluation of Swain. See McCray v. New York,
USS. 103 S. Ct. 2438-(1983) (Stevens, Blackmun
6
and Powell, J.J., concurring). In light of holdings of
the Supreme Courts of Massachusetts and California that
the use of peremptory challenges to exclude prospective
black jurors violates their state constitutional guarantees
of an impartial jury, see Commonwealth v. Soares, 377
Mass. 593, 387 N.E.2d 499, cert. denied, 444 U.S. 981
(1979) and People v. Wheeler, 222 Cal.3d 258, 583 F.2d
748 (1978), Teague asks this Court to view Swain as
noncontrolling.
Teague argues p?rsuasively, and were this Court writ-
ing on a clean slate, it might be inclined to adopt the
reasoning he advances. However, the issue is foreclosed
by Swain and the Seventh Circuit’s recent decisions in
United States v. Clark, No. 82-1813 (7th Cir. June 20,
1984) and United States ex rel. Palmer v. DeRobertis,
No. 83-1148 (7th Cir. May 14, 1984). This Court is not
free to reject the holding of the Court in Clark, as peti-
ticner requests. Since this Court sits “on the shores of
Lake Michigan rather than the banks of the Potomac,”
Vail v. Board of Education of Paris Union, 706 F.2d
1435. 1445 (7th Cir. 1983) (Eschbach, J., concurring),
the decisions in Clark and Palmer are controlling.
IT IS THEREFORE ORDERED that respondents’
motion for summary judgment is granted. The petition
for a writ of habeas corpus is denied.
ENTER:
s William T. Hart
United States District Judge
Dated: August 8, 1984
T
UNITED STATES COURT OF APPEALS
SEVENTH CIRCUIT
No. 84-2474
UNITED STATES OF AMERICA, EX REL.
FRANK TEAGUE,
Petitioner-A ppellant,
V.
MICHAEL P. LANE, Directer,
Department of Corrections and
MICHAEL O’LEARY, Warden,
Stateville Correctional Center,
Respondents-A ppellees.
Dec. 30, 1985
Before CumMMINGS, Chief Judge, and BAUER, Woon,
CrpaHy. PoSNER, CoFFEY, FLAUM, EASTERBROOK, and
RIpece, Circuit Judges.
ORDER
This case was argued on April 9, 1985 to a panel con-
sisting of Judges Cudahy and Coffey. together with
Senior Circuit Judge John W. Peck of the Sixth Circuit,
sitting by designation.
Pursuant to Circuit Rule 16/e), the panel opinion in
this case was circulated to all the judges of the court in
regular active service. A majority of the judges in reg-
ular active service have voted to rehear this case en bane,
8
the time of argument to be set at a date convenient to
the court.
CUDAHY, Circuit Judge, dissenting.
This case involves the question whether the Constitu-
tion prohibits prosecutors from using their peremptory
challenges to exclude potential jurors exclusively on the
basis of race. The matter was originally heard by a
panel consisting of Judge Coffey, Senior Circuit Judge
John W. Peck of the Sixth Circuit, sitting by designa-
tion, and me. The panel opinion, which I wrote, vacated
and remanded on the grounds that the exercise of per-
emptory challenge by the prosecutor in this case violated,
at least prima facie, the defendant’s Sixth Amendment
right of an impartial jury. The panel opinion, together
with a dissent by Judge Coffey, was then circulated un-
der our Circuit Rule 16 to the full court, which voted to
rehear the matter en banc. I shall briefly outline here the
essential content of the opinion of the panel majority to
indicate why I believe that en bane review is unneces-
sary. Judge Peck has requested that I record his agree-
ment with the views which follow.
Frank Teague, a black, was tried before a jury in an
Illinois court and convicted of attempted murder and
armed robbery. Each side had ten peremptory challenges
and the state exercised all 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, arguing that the
state was denying Teague a trial by a jury of his peers
by excluding potential jurors on the basis of race. These
motions were denied. . Ithough, as things now stand, a
prosecutor need not defend his peremptory challenges,
the state offered two rationales for its actions: that it
was attempting to obtain a balance of men and women
on the jury and that it had excused a number of young
people. The Illinois Appellate Court noted that the rec-
ord did not support the state’s explanation but held that
9
under existing law it could place no restriction on a
prosecutor’s use of his peremptory challenges.
The precise issue raised was whether a defendant's
Sixth Amendment rights are violated when a prosecutor
uses his peremptory challenges to exclude members of one
race from a petit jury. Such a use is not a violation of
the Equal Protection Clause of the Fourteenth Amend-
ment, so long as the exclusion does not prevent members
of a race from ever sitting on juries, “in case after case,
whatever the circumstances, whatever the crime, and
whoever the defendant or victim may be.” Swain v.
Alabama, 380 U.S. 202, 223, 85 S.Ct. 824, 837, 13 L.Ed
2d 759 (1965). Swain was clearly decided on equa! pro-
tection grounds and, although the Court did not question
the standing of the defendant Swain, the rights asserted
and addressed by the Court were in large measure “he
rights of blacks who were prevented from serving as
jurors. But the right to sit on a jury is quite distinct
from the right of a defendant to be tried by a jury from
which members of his race have not been systematically
excluded.
The Fourteenth Amendment guarantees due process as
well as equal protection, but at the time Swain was
decided it was not yet seided which jury-trial rights
were guaranteed by that amendment’s due process clause.
We now know that the Sixth Amendment applies fully to
the states through the Fourteenth Amendrrent, Duncan
v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d
491 (1968); what has not been resolved is whether the
Sixth Amendment guarantees the right to a jury from
which eligible jurors have not been excluded because of
their race. This question was raised but not decided in
two recent cases in this circuit. See United States v.
Clark, 737 F.2d 679 (7th Cir.1984) facts of case failed
to raise presumption of racial motivation) ; United States
ex rel. Pulmer v. DeRobertis, 738 F.2d 168 (7th Cir.),
cert. denied, USS. , 105 S.Ct. 306, 83 L.Ed.2d
10
241 (1984) (habeas petitioner waived objection by fail-
ing to raise it in state court). Other circuits have split
on the question, compare Weathersby v. Morris, 708 F.2d
1493, 1497 (9th Cir.1983), and United States v. Chil-
dress, 715 F.2d 1313 (8th Cir.1983) (no Sixth Amend-
ment right), with McCray v. Abrams, 750 F.2d 1113
(2d Cir.1984), and Booker v. Jabe, 775 F.2d 762 (6th
Cir.1985), and the Supreme Court has heard oral argu-
ment on this question in an appeal from a state supreme
court, Batson v. Kentucky, —— U.S. ——, 105 S.Ct.
2111, 85 L.Ed.2d 476 (1985).
As Judge Peck and I have viewed it, the question
presents a clash between two devices, the peremptory
challenge and the requirement of representativeness in
the jury pool, both of which are intended to secure an
impartial jury and neither of which we wanted to see
destroyed. For the most part they do not conflict, but
when they do, one must give way partially so that neither
will be destroyed.
The Sixth Amendment guarantees that the jury pool
from which a jury is selected must contain a representa-
tive cross-section of the community. Taylor v. Louisiana,
419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The
representativeness requirement does not extend directly
to the petit jury—no defendant can demand a perfect
cross-section on his jury—but the fact that there is not a
direct connection does not mean that there is no connec-
tion at all. If the Sixth Amendment has implications for
the jury pool, that can only be because it has some im-
plication for the jury that actually sits at trial. In Wil-
liams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d
446 (1970), the Supreme Court held that a six-person
jury was constitutionally acceptable, noting that a jury
should be large enough “to promote group deliberation,
free from outside attempts at intimidation, and to pro-
vide a fair possibility for obtaining a representative
cross-section of the community.” Jd. at 100, 90 S.Ct. at
11
1906 (emphasis added). In Ballew v. Georgia, 435 U.S.
223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), it held that
a five-person jury was not, expressing concern about
“the ability of juries truly to represent the community
as membership decreases below six.” /d. at 242, 98 S.Ct.
at 1040. Although the Sixth Amendment does not guar-
antee a representative trial jury, it does appear to guar-
antee the possibi/ity of a representative jury. In the ab-
sence of that possibility, the negative effect upon defenc-
ants who belong to the group excluded is not difficult to
imagine; it will be especially severe where the group
suffers from community prejudice. Judge Peck and I
thought it beyond dispute, therefore, that the Sixth
Amendment’s protection lies in its vequirement that the
state cannot interfere with the possibility that the jury
will be representative.
There is no constitutional right to peremptory chal-
lenges. Swair, 280 U.S. at 219, 85 L.Ed.2d at 835, but
the peremptory challenge has a long history, serves an
important function and should not lightly be narrowed.
The peremptory challenge allows each side to eliminate
jurors whom it suspects, for reasons it cannot articulate
or for reasons not reaching the level of cause, of being
partial to the other side. With peremptory challenges,
the resulting jury should be closer to the ideal of a body
without sympathies for either side. And yet the peremp-
tory challenge may conflict with the goal of securing to
each defendant the possibility of a representative jury,
for with enough peremptory challenges a prosecutor can,
if he chooses, make sure that members of a minority
group do not appear on any jury where their presence
would be a hinderance to him.
Judge Peck and I therefore believed that the only op-
tion open to the court in these circumstances was to
limit the peremptory challenge in some way. We did not
believe that this mechanism for insuring jury impartial-
ity would be destroyed if abuses of it were made subject
12
to objection. We therefore suggested a limitation that
we think would be the least intrusive while complying
with the demands of the Sixth Amendment. Rather than
reduce the number of peremptory challenges, as some
have suggested, we sought to limit the prosecutor with a
procedure that would screen out only cases of discrimi-
natory abuse. Two circuits have placed such limits on
the use of the peremptory challenge to avoid violating the
Sixth Amendment. See Booker v. Jabe, supra, and Mc-
Cray v. Adams, supra. A number of other circuits have
done so as_an exercise of their supervisory powers. See
United States v. Leslie, 759 F.2d 366 (5th Cir.1985)
(en bane\:; United States v. Jackson, 696 F.2d 578, 593
(8th Cir.1982), cert. denied, 460 U.S. 1073, 103 S.Ct.
1531, 75 L.Ed.2d 952 (1983). See also United States
v. McDaniels, 379 F.Supp. 1243, 1249 (E.D.La.1974).
State supreme courts have followed a similar route, see
State v. Neil, 457 So.2d 481 (Fla.1984) ; Commonwealth
v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979); People
v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d
748 (1978).
According to the procedure adopted by these courts
and suggested by Judge Peck and me, the defendant
would have to raise a timely objection and make out a
prima facie case by showing that the persons excluded
were members of a cognizable and suspect group and
that those challenged were more likely to have been chal-
lenged because of the group they belong to than because
of any specific bias. Once the prima facie case was
made, it would be up to the prosecutor to rebut it. The
appropriate rebuttal would involve bias, of course, be-
cause bias is supposed to be the reason for the chal-
lenges in the first place. The prosecutor’s rationale would
not have to be one that would sustain a challenge for
cause, but it would have to be both race-neutral and sup-
ported by the record. This procedure would not prevent
the prosecutor from excluding two, or three, or four of
13
a given race; but it would prevent him from either using
all of his peremptories to exclude members of a race,
or from using his peremptories to systematically exclude
all members of a race. All of this would fall short of
destroying the peremptory challenge. The prosecutor
would be free to use his challenges as he chose, so long
as he did not use them for the impermissible purpose of
systematically excluding blacks, or members of one cog-
nizable group, from the petit jury.
For these reasons, which were set forth at length in
the proposed panel opinion, I think en banc review un-
necessary and | therefore respectfully dissent from the
order directing rehearirg en bane.
14
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
(Title Omitted in Printing)
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division
No. 84 C 1934—WILLIAM T. Hart, Judge
ARGUED OCTOBER 23, 1986—DECIDED MAY 11, 1987*
OPINION OF THE COURT
Before BAUER, Chief Judge, CUMMINGS, Woop, CUDAHY,
POSNER, COFFEY, EASTERBROOK, and RIPPLE, Circuit
Judges. The original panel decision in this case revers-
ing the order of the district court that denied the ap-
pellant Frank Teague’s petition for a writ of habeas
corpus was vacated, United States ex rel. Teague v. Lane,
779 F.2d 1332 (7th Cir. 1985), and the case set for re-
hearing en bane pursuant to Circuit Rule 16(e).' We
now affirm the order of the district court denying
Teague’s petition for a writ of habeas corpus.
* The original opinion in this case with Judge John L. Coffey dis-
senting was circulated to the active members of the court pur-
suant to Circuit Rule 16(c). A Majority of the court voted to rehear
the case en banc.
'The rehearing en banc was postponed until after the United
States Supreme Court had decided Batson v. Kentucky, 106 S. Ct.
1712 (1986), which was pending before the Supreme Court when
we vacated the original panel decision in Teague.
15
I
Correy, Circuit Judge. Teague, a black man, was con-
victed after a jury trial in an Illinois court for attempted
murder and armed robbery.’ In the process of selecting
the Teague jury, the prosecution in the exercise of its
peremptory challenges excluded ten black jurors. In the
exercise of the defendant’s peremptory challenges, the
only other black on the juror list was removed. The de-
fendant initially challenged the State’s use of its peremp-
tory challenges after the state had exercised six of its
peremptories and again after jury selection was com-
pleted claiming that the State’s exclusion of all blacks
from the jury deprived him of his right to “trial by
a jury of his peers.” The trial court rejected the de-
fendant’s argument that he was deprived of a “trial by
his peers” stating that “the jury appears to be a fair
jury” and the Illinois Court of Appeals affirmed the de-
fendant’s conviction explaining that no restriction could
be placed on a prosecutor’s exercise of peremptory chal-
lenges in the absence of a demonstration that blacks had
been systematically excluded under the Swain v. Alabama
test. People v. Teague, 108 Ill. App. 3d 891 (1st Dist.
1982). The Illinois Supreme Court denied Teague’s Pe-
tition for Leave to Appeal, 93 Ill. 2d 547 (1983), and
the United States Supreme Court denied certiorari. 464
U.S. 867 (1983). Teague then filed a petition for a writ
of habeas corpus in the federal district court. The dis-
trict court denied Teague’s petition for a writ of habeas
* Teague was charged with attempted murder, aggravated bat-
tery, and armed robbery. Section 115-4(e) of the Illinois Code of
Criminal Procedure provides in pertinent part:
“A defendant ... shall be allowed 20 peremptory challenges
on a capital case, 10 in a case on which the punishment may
be imprisonment in the penitentiary [including attempted mur-
der and armed robbery], and 5 in all other cases... . The
State shall be allowed the same number of peremptory chal-
lenges as all defendants.”
Ill. Rev, Stat. Ch, 88, 115-4(e).
16
corpus explaining that Teague’s claim that his constitu-
tional rights were violated by the prosecution’s use of its
peremptories was “foreclosed by Swgin and the Seventh
Cireuit’s recent decisions in United States v. Clark (737
F.2d 679 (7th Cir. 1984)], and United States ex rel.
Palmer v. DeRoberts, {738 F.2d 168 (7th Cir. 1984) }.”
In Batson, 106 8S. Ct. 1712 (1986), the Supreme Court
decided that “the Equal Protection Clause forbids the
prosecutor to challenge potential jurors solely on account
of their race or on the assumption that black jurors as
a group will be unable impartially to consider the State’s
case against a black defendant.”* The Batson decision
expressly overruled Swain v. Alabama, 380 U.S. 202
(1965), but did not address the sixth amendment ques-
tion concerning the right to a trial by an impartial jury.
In Allen v. Hardy, 106 S. Ct. 2878 (1986), the Supreme
Court held that Batson was not to be applied “retro-
actively {to cases such as Teague’s} on collateral review
of convictions that became final before our opinion |in
Batson| was anrounced.”* However, even if Batson
were to be applied retroactively to Teague’s case, it
would not control this court’s disposition of Teague’s
petition for habeas corpus, since Teague challenges his
conviction on sixth amendment® grounds and does not
§The Equal Protection Clause of the Fourteenth Amendment
provides: “[{No state shal!| deny to any person within its jurisdic-
tion the equal protection of the laws.”
4 Teague argues that we should determine the “finality” of his
appeal as of the date the Supreme Court denied certiorari in
McCray v. Abrams, 103 S. Ct. 2438 (1989). However Allen makes
clear that “finality” for purposes of the retroactive application of
Batson is to be determined as of the date Batson was decided
and Teague has not persuaded us that Allen means anything other
than what it expressly states.
5 The sixth amendment provides:
“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
17
raise an equal protection claim subject to the holdings in
Batson and Allen.*
II
In Batson v. Kentucky, 106 S.Ct. 1712 (1986), the
United States Supreme Court held that “The Equal Pro-
tection Clause forbids the prosecutor to challenge po-
tential jurors solely on account of their race or on the
assumption that black jurors as a group will be unable
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 com-
pulsory process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defence.”
* Counsel for Teague asserted at oral argument that this court
could decide Teague’s appeal on Equal Protection grounds under
Swain v. Alabama if we refused to apply Batson retroactively to
Teague’s appeal. Although we are persuaded by the State’s argu-
ment that Teague did not specifically raise a Swain v. Alabama
claim in the state court and therefore he is procedurally barred
from doing so under Wainwright v. Sykes, 433 U.S. 72 (1977), we
reject Teague’s Equal Protection argument in substance as well,
Teague did not claim in state court nor in the district court that
the prosecution had engaged in the systematic exclusion of blacks
from petit juries in case after case. Thus, Teague has failed to
meet his initial burden under the Swain v. Alamaba analysis.
Teague also argues, based on Weathersby v. Morris, 708 F.2d 1493
(9th Cir. 1983), that where the prosecutor volunteers an explana-
tion for the use of his peremptory challenges, Swain does not
preclude the court from examining the stated reasons to deter-
mine the legitimacy of the prosecutor’s motive in exercising his
peremptories. This court has refused to read Swain so broadly.
In United States v. Clark, 737 F.2d 679, 682 (7th Cir. 1984), we
noted that absent evidence that established a pattern of systematic
exclusion of blacks “larger than the single case” there was no basis
for an Equal Protection challenge even if it could be demonstrated
that the prosecution had exercised its peremptories on the basis
of race. Accordingly, even if Teague’s Equal Protection claim based
on Swain was not barred under Wainwright v. Sykes, we would
reject it on the basis of our prior refusal to read Swain as broadly
as the Ninth Circuit has in Weathersby.
18
impartially to consider the State’s case against a black
defendant.” Jd. at 1719. The Batson decision adopted a
new analysis for establishing whether the prosecution’s
use of its peremptory challenges had violated the Equal
Protection Clause and “reject{ed] this [the Swain v.
Alabama) evidentiary formulation [for establishing Equal
Protection violation] as inconsistent with standards that
have been developed since Swain for assessing a prima
facie case under the Equal Protection Clause.” Jd. Un-
der Batson,
“a defendant may establish a prima facie case of
purposeful discrimination in selection of the petit
jury solely on evidence concerning the prosecutor’s
exercise of peremptory challenges at the defendant’s
trial. To establish such a case, the defendant first
must show that he is a member of a cognizable
racial group, Castaneda v. Partida, supra, 430 U.S.,
at 494, 97 S.Ct., at 1280, and that the prosecutor
has exercised peremptory challenges to remove from
the venire members of the defendant’s race. Second,
the defendant is entitled to rely on the fact, as to
which there can be no dispute, that peremptory chal-
lenges constitute a jury selection practice that per-
mits ‘those to discriminate who are of a mind to
discriminate.’ Avery v. Georgia, supra, 345 U.S., at
562, 73 S.Ct., at 892. Finally, the defendant must
show that these facts and any other relevant cir-
cumstances raise an inference that the prosecutor
used that practice to exclude the veniremen from the
petit jury on account of their race. This combina-
tion of factors in the empanelling of the petit jury,
as in the selection of the venire, raises the necessary
inference of purposeful discrimination.”
Id. at 1722-23. The Swain court refused to adopt a rule
that would allow a criminal defendant to establish an
Equal Protection violation simply by demonstrating that
in his particular case, the prosecution had used its per-
19
emptories to remove all blacks from the jury actually
empanelled to try the defendant:
“In the light of the purpose of a peremptory sys-
tem and the function it serves in a pluralistic society
in connection with the institution of jury trial, we
cannot hold that the constitution requires an exami-
nation of the prosecutor’s reasons for the exercise
of his challenges in any given case. The presump-
tion in any particular case must be that the prosecu-
tor is using the State’s challenges to obtain a fair
and impartial jury to try the case before the court.
The presumption is not overcome and the prosecutor
therefore subjected to examination by allegations
that 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 per-
emptory challenge system as we know it. Hence
the motion to strike the trial jury was properly
denied in this case.”
880 U.S. at 223. Instead, Swain required that a defend-
ant seeking to establish an Equal Protection violation
must demonstrate that the prosecutor systematically
used his peremptories to exclude Blacks or other sus-
pect classes from petit juries in case after case, and not
just that all Blacks were peremptorily removed from the
jury in the particular defendant’s case:
“We have decided that it is permissible to insulate
from the inquiry the removal of Negroes of a par-
ticular jury on the assumption that the prosecutor
is acting on acceptable considerations related to the
ease he is trying, a partciular defendant involved
and the particular crime charged. But when the
prosecutor in a county, in case after case, whatever
the circumstances, whatever the crime and whoever
the defendant or the victim may be, is responsible
for the removal of Negroes who have been selected
20
as qualified jurors and the jury commissioners and
who survive challenges for cause, with the result
that no Negroes ever serve on petit juries, the Four-
teenth Amendment claim takes on added signifi-
cance.”
Id. (emphasis added).
Batson rejected this approach as a requirement for es-
tablishing an Equal Protection violation based on the
prosecutor’s use of peremptory challenges. The court
explained that Swain: “Placed on defendants the crip-
pling burden of proof” and thus “prosecutors peremptory
challenges are now arguably immune of constitutional
scrutiny.” 106 S. Ct. at 1720-21 (footnote omitted).
Accordingly, the court in Batson rejected the Swain
court’s “evidentiary formulation [for establishing that
a prosecutor used its peremptories for a constitutionally
impermissible purpose] as inconsistent with standards
that have developed since Swain for assessing a prima
facie case under the Equal Protection Clause.” Jd. at
1719.
The Batson decision makes clear that the court decided
the case on equal protection grounds and declined to rule
on Batson’s claimed sixth amendment violation:
“We agree with the State that resolution of the peti-
tioner’s claim properly turns or application of equal
protection principles and express no view on the
merits of any of petitioner’s Sixth Amendment argu-
ments,”
Batson, 106 S. Ct. at 1716 n. 4." Although in Batson a
criminal defendant was allowed to establish a violation
7 The concurring and dissenting judges apparently read footnote
4 in Batson as implying that the Supreme Court decided Batson
on Equal Protection grounds even though the petitioner had never
raised an Equal Protection claim. The petitioner in Batson, unlike
Teague, objected to the prosecutor's use of peremptory challenges
on Equal Protection grounds in the state trial court, and thus,
21
of the equal protection clause by alleging, as Teague has,
that the prosecution exercised its peremptories solely
on the basis of a prospective juror’s race, the Supreme
Court’s Allen v. Hardy, 106 S. Ct. 2878 (1986) decision,
precludes an application of the Batson rule to Teague’s
appeal. In Allen, decided just two months after Batson,
the court held that Batson did not apply “retroactively
on collateral review of convictions that became final be-
fore our opinion [in Batson] was announced.” The court
went on to explain that:
“By final we mean where the judgment of conviction
was rendered, the availability of appeal exhausted,
and the time for petition for certiorari had elapsed
before our decision in Batson v. Kentucky.”
Id. at n. 1. Teague’s appeals were rejected by the Illinois
appellate courts and his petition for writ of certiorari
from the United States Supreme Court was denied on
October 8, 1983. See Teague v. Illinois, 464 U.S. 867
(1983). Thus, Teague’s case is “final” for purposes of
applying Batson retroactively and therefore our review of
Teague’s appeal is limited solely to his sixth amendment
argument, an argument the Supreme Court declined to
consider in Batson.
Essentially, Teague relies on Smith v, Texas, 311 US.
128 (1940), and subsequent Supreme Court decisions, to
there was a basis in the record for deciding Batson on Equal Pro-
tection grounds. In contrast, since Teague based his objection to
the prosecutor’s use of peremptories on the fair cross-section re-
quirement of the Sixth Amendment there is no basis in the record
for deciding his appeal on Equal Protection grounds. Teague’s sub-
sequent arguments in the state courts did not address Equal Pro-
tection and thus Teague’s appeal is clearly distinguishable from
Ratson. Teague asserted an Equal Protection argument more than
one year after his initial argument before this court pursuant to
our request that the parties brief the effect on Teague’s appeal
of the Supreme Court’s decision in Batson. Unfortunately for
Teague, the Supreme Court's decision in Allen makes clear that
Teague is not entitled, any more than the petitioner in Allen, to
raise an Equal Protection claim at this stage in the proceedings.
argue that the “fair cross section of the community” re-
quirement as found in the sixth amendment is applicable
to jury pools from which the petit jury is selected to
reflect the trial community and must likewise be applied
to the jury ultimately empanelled (petit jury) for trial.
Teague asserts that the use of peremptory challenges to
exclude certain classes of a community from the petit
jury in effect undermines the Supreme Court’s fair cross-
section requirement in the jury pool and contravenes the
very idea of a jury composed of the peers and equals of
the person on trial. Teague acknowledges that the Su-
preme Court in Taylor v. Louisiana, 419 U.S. 522
(1975). refused to extend the fair cross-section require-
ment to the petit jury, but maintains that two Supreme
Court cases, Williams v. Florida, 399 U.S. 78 (1970),
and Ballew v. Georgia, 435 U.S. 223 (1978), addressing
the small number of jurors on petit juries support his
argument that the sixth amendment requires the fair
eross section principle be applied to petit juries as well
as the jury pools they are drawn from. Teague asserts
that Williams v. Florida, stands for the proposition that
the sixth ameiidment requires that the petit jury must be
selected pursuant to procedures that provide a “fair pos-
sibility” of obtaining a petit jury representative of the
community. Accordingly, Teague reads the Supreme
Court’s determination in Ballew v. Georgia, that a trial
by jury of less than six persons“ violates the sixth
amendment because it in effect mathematically decreases
the opportunity for meaningful representation of a
cross section of the community as supporting his position.
Teague interprets Ballew as meaning that the use of
peremptory challenges to remove prospective jurors on
the basis of race alone violates the sixth amendment since
exercising one’s peremptory challenges on the basis of
8 The following states allow trial by a jury of less than twelve
persons in felony cases: Arizona, Connecticut, Florida, Louisiana,
Massachusetts, Nebraska, and Utah. State Court Organization
1980, National Center for State Courts (1980).
23
race alone decreases the “opportunity” for minority rep-
resentation on the petit jury and thereby prevents the
jury from reflecting a fair cross-section of the commu-
nity. Therefore, according to Teague, the use of per-
emptories to remove prospective jurors on the basis of
race alone violates the sixth amendment since the petit
jury ultimately empanelled does not reflect a fair cross-
section of the community.
Teague’s argument that the petit jury should be con-
sidered the same as the jury pool for purposes of the fair
cross-section requirement rests on the mistaken assump-
tion that the word “impartial” as used in the sixth
amendment requires that the petit jury reflect a cross-
section of the community-from which it is drawn. Teague
has not argued to this court nor any of the other courts
that have heard his case, that the jury that tried him
was not impartial. Rather, he asserts only that the jury
in his case did not represent a cross-section of the com-
munity wherein he was tried. We refuse to break new
ground and read such a requirement into the sixth
amendment for the decisions of the United States Su-
preme Court to date fail to support such an argument.
Since we agree with the United States Supreme Court
and not with Teague’s theory that the sixth amendment
requires that the petit jury be identical to the community
where the jury is drawn from, we reject Teague’s asser-
tion that the prosecutor’s use of his peremptories to re-
move ten prospective black jurors from the petit jury
violated his sixth amendment right to trial by an im-
partial jury.
The sixth amendment provides that:
“In all criminal prosecutions, the accused shall en-
joy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed. . . .”
The United States Supreme Court has consistently inter-
preted the sixth amendment right to trial by an impar-
24
tial jury to require a jury that is “indifferent” and that
the petit jury be selected from a “fair cross-section of
the community:” “In essence, the right to jury trial
guarantees to the criminally accused a fair trial by a
panel of impartial, ‘indifferent’ jurors,” Jrwin v. Dowd,
366 U.S. 717, 723 (1961), and “A fair possibility for
obtaining a jury constituting a representative cross sec-
tion of the community.” Taylor v. Louisiana, 419 US.
522, 529 (1975). In Taylor, the court explained:
“The unmistakable import of this court’s opinions, at
least since 1940, Smith v. Texas, supra, and not re-
pudiated by intervening decisions, is that the selec-
tion of a petit jury from a representative cross sec-
tion of the community is an essential component of
the Sixth Amendment right to a jury trial. Recent
federal legislation governing jury selection within
the federal court system has a similar thrust.
Shortly prior to this court’s decision in Duncan v.
Louisiana, supra, the Federal Jury Selection and
Service Act of 1968 was enacted. In that Act, Con-
gress stated ‘The policy of the United States that all
litigants in Federal courts entitled to trial by jury
shall have the right to grand petit juries selected at
random from a fair cross section of the community
in the district or division wherein the court con-
venes.’ 28 U.S.C. § 1861. In that Act, Congress also
established the machinery by which the state policy
was to be implemented. 28 U.S.C. §§ 186? through
1866. Passing this legislation, the Commiciee Re-
ports of both the House and the Senate recognized
that the jury plays a political function in the ad-
ministration of the law and that the requirement of
a jury’s being chosen from a cross section of the
community was fundamental to the American sys-
tem of justice. Debate on the floors of the House and
Senate on the Act invoked the Sixth Amendment, the
Constitution generally, and prior decisions of this
Court in support of the Act.”
25
419 U.S. at 529-31 (footnotes omitted). Although the
Supreme Court has interpreted the sixth amendment to
require that the jury in a criminal trial be chosen from
a jury pool that represents a fair cross-section of the
community, it has never interpreted the explicit com-
mand of the sixth amendment that the petit jury itself
be “impartial” to require that the petit jury actually
represent each and every element of the community from
which it is selected. Instead, the fair cross-section re-
quirement, like all constitutionally mandated characteris-
tices of the jury, has its origins in the purposes the
Supreme Court has interpreted the sixth amendment
right to jury trial to serve:
“The purpose of the jury is to guard against the
exercise of arbitrary power—to make available the
common sense judgment of the community as a
hedge against the over zealous or mistaken prosecu-
tor and in preference to the professional or perhaps
overconditioned or biased response of the judge. This
prophylactic vehicle is not provided if the jury pool
is made up of only special segnents of the populace
or if large, distinctive groups are excluded from the
pool. Community participation in the administration
of the criminal law, moreover, is not only consistent
with our democratic heritage, but is also critical to
public confidence in the fairness of the criminal jus-
tice system.”
Taylor, 419 U.S. at 531 (citation omitted). Contrary to
Teague’s assertion that the Supreme Court decisions in
Williams and Apodaca v. Oregon, 406 U.S. 404 (1972),
require us to apply the fair cross-section requirement to
the petit jury, those decisions, as well as the decisions in
Ballew and Burch v. Louisiana, 441 U.S. 130 (1979),
require only that the jury selection process provide for
the “possibility” that the jury empanelled reflect a fair
cross-section of the community. The decisions of the Su-
preme Court make clear that absent a pattern of system-
26
atic exclusion of a particular class from the petit jury,
no constitutional wrong has occurred.’ As the court ex-
plained in Apodaca:
“There are two flaws in this argument [that the
fair cross-section requirement requires a unanimous
verdict]. One is petitioners’ assumption that every
distinct voice in the community has a right to be
represented on every jury and a right to prevent
conviction of a defendant in any case. All that the
Constitution forbids, however, is systematic exclu-
sion of identifiable segments of the community from
jury panels and from the juries ultimately drawn
from those panels; a defendant may not, for exam-
ple, challenge the makeup of a jury merely because
no members of his race are on the jury, but must
prove that his race has been systematically excluded.
See Swain v. Alabama, 380 U.S. 202, 208-209, 85
S.Ct. 824, 829, 13 L.Ed.2d 759 (1965); Cassell v.
Texas, 339 U.S. 282, 286-287, 70 S.Ct. 629, 631,
94 L.Ed. 839 (1950); Akins v. Texas, 325 U.S. 398,
403-404, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692 (1945) ;
Ruthenberg v. United States, 245 U.S. 480, 28 S.Ct.
168, 62 L.Ed 414 (1918). No group, in short, has
the right to participate in the overall legal processes
by which criminal guilt and innocence are deter-
mined.”
406 U.S. at 413.
However, the Supreme Court decisions distinguish be-
tween the requirement that jury pools reflect a fair cross-
section of the community and the requirement that a
petit jury be impartial:
“Trial by jury presupposes a jury drawn from a
pool broadly representative of the community as well
as impartial in a specific case.”
® And the cases make clear that when a systematic pattern of
exclusion is established, the Equal Protection Clause and not the
sixth amendment is the constitutional provision implicated.
27
Thiel v. Southern Pacific Company, 328 U.S. 217, 227
(i946) (Frankfurter, J., dissenting) (adopted by Court
in Taylor, 419 U.S. at 531) (emphasis added). Indeed,
the Supreme Court has gone so far as to state:
“It is fundamental in questioning the composition of
a jury that a mere showing that a class was not rep-
resented in a particular jury is not enough.”
Fay v. New York, 332 U.S. 261, 285 (1947) (emphasis
added). And the court in Taylor read its prior decisions
concerning jury composition and the fair cross-section re-
quirement as specifically limiting the fair cross-section re-
quirement to the jury pool from which the petit jury was
ultimately empanelled:
“Tt should also be emphasized that in holding that
petit juries must be drawn from a source fairly rep-
resentative of the community we impose no require-
ment that petit juries actually chosen must mirror
the community and reflect the various distinctive
groups in the population. Defendants are not entitled
to a jury of any particular composition.”
419 U.S. at 538 (citation omitted).
Thus, the decisions of the United States Supreme Court
to date make clear that the fair cross-section requirement
of the sixth amendment does not apply to the petit jury
itself, and we are not persuaded that sufficient reasons
or facts presented to us in this record give reasons for
us to expand the scope of the Supreme Court’s holdings
in Teague’s case. Several factors mandate against such
an unwarranted expansion. First, the process of random
selection may result in the under—or over representation
of particular groups on a venire and the removal of
jurors for cause likewise may result in the under—or over
representation of a particular group on a petit jury in a
given case. Second, the requirement that a specific group
be represented on any given petit jury would necessarily
entail tremendous administrative problems in the empanel-
28
ling of a jury; in each case, the trial court would be called
upon to expend a greater amount of time in order to as-
certain the race, nationality, religion, occupation, and
other characteristics of members of the community in re-
lation to the facts and circumstances of the case on trial
and determine which groups of the population were rele-
vant, and thus essential to the composition of each and
every petit jury. As we noted in Clark, “(t]he potential
for stretching out criminal trials that are already too
long, by making the voir dire a Title VII proceeding in
miniature” is one of several »ractical considerations
against requiring that the petit jury represent a cross
section of the community. 737 F.2d at 682. See also
Saltzburg and Powers, Peremptory Challenges and the
Clash Between Impartiality and Group Representation,
41 Md. L. Rev. 337, 347-48 n.47 (1982). The Supreme
Court acknowledged these problems in a footnote in Bat-
son:
“Similarly, though the Sixth Amendment guarantees
that a petit jury will be selected from a pool of names
representing a cross-section of the community, Taylor
v. Louisiana, 419 U.S. 522 (1975), we have never
held that the Sixth Amendment requires that ‘petit
juries actually chosen must mirror the community
and reflect the various distinctive groups in the pop-
ulation,’ Jd. at 538. Indeed, it would be impossible
to apply a concept of proportional representation to
the petit jury in view of the heterogeneous nature of
our society. Such a possibility is illustrated by the
court’s holding that a jury of six persons is not un-
constitutional. Williams v. Florida, 399 U.S. 78,
102-103 (1970).”
Batson, 106 8. Ct. at 1717 n.6. In Lockhart v. McCree,
106 S. Ct. 1758 (1986), the Supreme Court further ex-
plained its reasons for not applying the fair cross-section
requirement to the petit jury:
“we do not believe that the fair cross-section require-
ment can, or should, be applied as broadly as that
court attempted to apply it. We have never invoked
the fair cross-section principle to invalidate the use
of either for-cause or peremptory challenges to pro-
spective jurors, or to require petit juries, as opposed
to jury panels or venires, to reflect the composition
of the community at large. See Duren v. Missouri,
439 U.S. 357, 363-364, 99 S.Ct. 664, 668, 58 L.Ed.2d
579 (1979); Taylor v. Louisiana, 419 U.S. 522, 538,
95 S.Ct. 692, 701-02, 42 L.Ed.2d 690 (1975) (‘[Wle
impose no requirement that petit juries actually
chosen must mirror the community and reflect the
various distinctive groups in the population’); ef.
Batson v. Kentucky, —— U.S. , , n.4, 106
S.Ct. 1712, 1716, n. 4, 89 L.Ed.2d —— (1986) (ex-
pressly declining to address ‘fair cross-section’ chal-
lenge to discriminatory use of peremptory chal-
lenges). The limited scope of the fair cross-section
requirement is a direct and inevitable consequence of
the practical impossibility of providing each criminal
defendant with a truly ‘representative’ petit jury,
see id, at ——, n. 6, 106 S.Ct. at 1717, no. 6, a basic
truth that the Court of Appeals itself acknowledged
for many years prior to its decision in the instant
case. See United States v. Childress, 715 F.2d 13138
(CA8 1983) (en banc), cert. denied, 464 U.S. 1063,
104 S.Ct. 744, 79 L.Ed.2d 202 (1984) ; Pope v. United
States, 372 F.2d 710, 725 (CA8 1967) (Blackmun,
J.) (‘The point at which an accused is entitled to a
fair cross-section of the community is when the names
are put in the box from which the panels are
drawn’), vacated on other grounds, 392 U.S. 651,
88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968). We remain
convinced that an extension of the fair cross-section
requirement to petit juries would be unworkable and
unsound, and we decline McCree’s invitation to adopt
such an extension.”
Further, although we believe the fair cross-section re-
quirement aids in the selection of an impartial jury, the
requirement itself does not guarantee an impartial jury—
and would not even if applied to the petit jury. Thus, the
parties must have peremptory challenges available to
them so that they might have the opportunity to eliminate
eny prospective juror whom they believe may not be im-
partial even though the jury was drawn from a pool rep-
resenting a fair cross-section of the community. Further,
peremptories help to ensure impartiality by compensating
for the limitations inherent in the jury system itself;
there is no guarantee that any group of twelve (or six)
empane!led to try a case will reflect all attitudes, beliefs,
etc. in a community. To prevent the unfairness of a trial
heard by a panel of jurors slanted toward one view or
another should chance so provide (i.e., random selection
of the pool), the parties are allowed to exercise the right
of the peremptory challenge in order that they might be
able to select a jury that they believe will be impartial
while serving their individual best interests in their sin-
cere attempt to achieve justice. Peremptory challenges
are consistent with the fair cross-section requirement to
insure that the jury that ultimately tries the case will be
impartial.
Moreover, many of the circuits that have addressed the
issue of whether the fair cross section requirement of the
sixth amendment mandates that the petit jury mirror the
community from which it is drawn have refused to ex-
tend the fair cross section requirement to the petit jury.
See United States v. Thompson, 730 F.2d 82, 85 (8th Cir.
1984), cert, denied, 105 S. Ct. 443 (1984); Pregean v.
Blackburn, 743 F.2d 1091, 1103-04 (5th Cir. 1984);
United States v, Witfield, 715 F.2d 145, 146-47 (4th Cir.
1983); Weathersby v. Morris, 708 F.2d 14938, 1497 (9th
Cir. 1983), cert. denied, 104 8. Ct. 719 (1984). Cf. Willis
v. Zant, 720 F.2d 1212, 1219 n. 14 (11th Cir. 1983),
cert. denied, 104 8. Ct. 8546 (1984),
31
Finally, extending the fair cross-section requirement to
the petit jury as Teague suggests would effectively under-
mine the use of peremptory challenges in criminal cases.
We refuse to expand or enlarge the parameters of the
Supreme Court decisions addressing the fair cross section
requirement, for doing so would seriously disrupt the trial
process as it currently exists, especially in view of the
Supreme Court’s explicit statements that such an expan-
sion is not justified. See Taylor; Fay. In Swain, the court
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:
“(T]he persistence of peremptories and their exten-
sive use demonstrate the long and widely held belief
that the peremptory challenge is a necessary part of
trial by jury.... The [peremptory] challenge is ‘one
of the most important of the rights secured to the
accused,’ ”
Swain, 380 at 219 (quoting Pointer v. United States, 151
U.S. 396 (1894)). But the right of the peremptory chal-
lenge is not limited to the accused. The Swain court rec-
ognized that: “The view in this country has been that
the system should guarantee ‘not only freedom from 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 peremp-
tory challenge as
“Not only to eliminate extremes of partiality 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 them, and not otherwise.
. . Indeed the very availability of peremptories
allows counsel to ascertain the possibility of bias
through probing questions on voir dire and facilitates
32
the exercise of challenges for cause by removing the
fear of incurring a juror’s hostility through examina-
tion and challenge for cause.”
380 U.S. at 219-20. The court further noted, “The essen-
tial nature of the peremptory challenges is that it is one
exercised without a reason stated, without inquiry and
without being subject to the court’s control.” /d. at 220.
“*!T)t is, as Blackstone says, an arbitrary and capricious
right, and it must be exercised with full freedom or it
fails of its full purpose.’” Jd. at 219 (quoting Lewis v.
United States, 146 U.S. 370, 378 (1892) ).
Teague’s argument that the fair -ross-section require-
ment of the sixth amendment extends to the petit jury
and restricts the use of peremptory challenges ignores the
fact that the peremptory challenge is an essential tool not
only to the prosecutor, but to the defendant as well, and
their combined effort to obtain a fair and impartial petit
jury in their search for the truth of the facts presented
and ultimate justice for all. Any requirement that would
interfere with the use of peremptory challenges would
harm the defendant by disarming the defendant or his at-
torney of the ability to rely on intuitive feelings or past
trial experience in selecting the jury that will pass judg-
ment on the defendant. The
“system of peremptory [challenges]—challenges
without cause, without explanation, and without ju-
dicial scrutiny—affords a suitable and necessary
method of securing juries which in fact and in the
opinion of the parties are fair and impartial.”
Swain, 380 U.S. at 211-12. And the peremptory challenge
“is, as Blackstone says, an arbitrary and capricious
right, and it must be exercised with full freedom, or it
fails of its full purpose.’”’ Jd. at 219 (quoting Lewis v.
United States, 146 U.S. 370, 378 (1892)). The sixth
amendment literally provides, “in all criminal prosecu-
tions, the accused shall enjoy the right to a speedy and
33
public trial, by an impartial jury” (emphasis added).
“In essence, the right to a jury trial guarantees to the
criminally accused a fair trial by a panel of impartial,
‘indifferent’ jurors.” Irwin v. Dowd, 366 U.S. 717, 722
(1961) (emphasis added). Although the sixth amend-
ment provides protection only for the defendant, if we
believe that the American system of justice is based on
the premise that a jury trial is a search for the truth,
we must acknowledge that both the prosecution and de-
fendant are entitled to an impartial jury. Thus, the
courts have recognized that “The State also enjoys the
right to an impartial jury.” Spinkellink v. Wainwright,
578 F.2d 582, 596 (5th Cir. 1978), cert. denied, 440 U.S.
976 (1979).
“The system should guarantee ‘not only freedom
from any bias against the accused, but also from any
prejudice against the prosecution. Fetween him and
the State, the scales are to be evenly held.’ ”
Swain, 380 at 220 (quoting Hayes v. State of Missouri,
120 U.S. 68, 70 (1887)); Spinkellink, 578 F.2d at 596.
The peremptory challenge does not conflict with the
right of a defendant to have his jury drawn from a rep-
resentative jury pool. Both the peremptory challenge and
the requirement of the representative venire advanced the
constitutional goal of obtaining a fair and impartial jury
in the undying quest and search for justice. And it may
be that the requirement that a jury venire or pool rep-
resent a fair cross-section of the community in fact in-
creases the necessity of employing peremptories to ob-
tain an impartial petit jury.
“In contrast to the course in England, where both
peremptory challenge and challenge for cause have
fallen into disuse, peremptories were and are freely
used and relied upon in this country, perhaps because
juries here are drawn from a greater cross section
of a heterogeneous society.”
34
Swain, 380 U.S. at 218. The Swain court acknowledged
that the “peremptory challenge is a necessary part of
trial by jury.” Jd. The court recognized that the chal-
lenge for cause alone is insufficient to assure the im-
partiality of a jury in a given case.
“While challenges for cause permit rejection of ju-
rors on a narrowly specified, provable and legally
cognizable basis of partiality, the peremptory chal-
lenge permits rejection for a real or imagined par-
tiality that is less easily designated or demonstrable.”
Id. st 220. Thus, the courts have found it proper to exer-
cise a peremptory challenge to exclude a juror who could
not be dismissed for cause in the context of a given trial.
See Dobbert v. Strickland, 718 F.2d 1518, 1524-25 (11th
Cirl 1983) ; Jordan v. Watkins, 681 F.2d 1067, 1070 (5th
Cir. 1982).
Finally, Teaguc’s argument that Williams and Ballew
require us to extend the fair cross-section requirement to
the petit jury is likewise unpersuasive. Although Wil-
liams and Ballew pertain specifically to the composition
of petit juries, when viewed in the proper context, they
militate against Teague’s assertion that the petit jury
must contain a cross-section of the community: the six-
person Florida jury approved in Williams certainly does
not guarantee that the jury will consist of a representa-
tive cross-section of the community anymore than a 12-
person jury. The Supreme Court in Williams stated:
“Even the 12-ran jury cannot insure representation
of every distinct voice in the community, particu-
larly given the use of the peremptory challenge. As
long as arbitrary exclusions of a particular class from
the jury rolls are forbidden . . . the concern that
the cross section will be significantly diminished if
the jury is decreased in size from 12 to 6 seems an
unrealistic one.”
35
399 U.S. at 102. The court nevertheless recognized in
Ballew, “The opportunity for meaningful and appropriate
representation does decrease with the 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 12 jurors. Not-
withstanding the court’s recognition in Ballew that a five-
person jury inhibits the goal of meaningful and appro-
priate representation on the petit jury, the court in
Ballew declined to retreat from its holding in Williams.
The Supreme Court thus recognized that merely decreas-
ing the possibility of obtaining a fair cross-section of
the community on the petit jury does not violate the
sixth amendment right to a trial by an impartial jury.
Further, the record is barren of any proof or testimony
establishing community prejudice towards Teague.
The free and unrestrained exercise of peremptory chal-
lenges does not eliminate the possibility of obtaining a
truly representative trial jury and thus does not violate
the sixth amendment right to trial by an impartial jury.
See Taylor 19 U.S. at 529 (sixth amendment requires
“la] fair possibility for obtaining a jury constituting a
representative cross-section of the community”). So long
as the jury pool contains a fair cross-section of the com-
munity, the possibility of obtaining a representative trial
jury remains regardless of how either party exercises its
peremptory challenges. Since the sixth amendment re-
quires only that a jury be impartial, we refuse to extend
the fair cross-section requirement to require that the
petit jury trying a criminal defendant reflect a fair
cross-section of the community wherein the trial takes
place. Requiring the petit jury to mirror the community
will effectively undermine the value of the peremptory
challenge without appreciably increasing the ability of
the defendant or the prosecution to insure that the jury
ultimately empanelled is impartial as required by the
36
sixth amendment—all at the expense of the American
jury system.
III
CONCLUSION
The sixth amendment provides the defendant in a crim-
inal proceeding with the right to a trial by an impartial
jury. The Supreme Court has determined that the right
to trial by an impartial jury requires that the jury pool
from which the petit jury is selected reflect a fair cross-
section of the community so as to make possible and prob-
able a petit jury representative of the community in
which the defendant is tried. The Supreme Court has
made clear, however, that the sixth amendment does not
provide the criminal defendant with the right to a petit
jury of any particular composition. Taylor v. Louisiana,
419 U.S. 522 (1975). Since we are not persuaded by the
defendant’s argument nor the realities of trial that a
petit jury that mirrors the community from which it is
drawn guarantees an impartial jury, we are not willing
to interpret the sixth amendment as prescribing limits on
the prosecutor’s (or defendant’s) exercise of peremptory
challenges. We are confident that all jurors, black, white,
or any other vace, creed or color, upon the taking of their
oath are equally capable of performing their task impar-
tially. To hold that the sixth amendment limits the use
of peremptory challenges would undermine the use of
peremptory challenges and impair the function of the
jury in criminal trials without any demonstrable im-
provement in the impartiality of juries. Accordingly,
we affirm the district court’s order denying Teague’s pe-
tition for a writ of habeas corpus.
37
RIPPLE, Circuit Judge, concurring. I concur in the
judgment of the court.
In my view, as Judge Cudahy points out in his dissent,
Mr. Teague may properly assert an equal protection
claim in this court under the unique circumstances pre-
sented here. The Supreme Court, in Batson v. Kentucky,
106 S. Ct. 1712, 1716 n.4 (1986), refused to hold that
the petitioner was procedurally barred from the obtain-
ing relief on the basis of the equal protection clause even
though he had not raised an equal protection claim. I
agree with Judge Cudahy that “[i]f one has no obliga-
tion to argue to the Supreme Court itself that it overrule
one of its own cases, one surely need not argue to a dis-
trict court that a Supreme Court case is wrong.” Dissent
at 3 (Cudahy, J.).
Although the equal protection claim is properly before
us under the Supreme Court’s ruling in Batson, that
Court’s subsequent holding in Allen v. Hardy, 106 S. Ct.
2878 (1986), controls our disposition of that claim. In
Allen, the Supreme Court held that its holding in Batson
should not be applied retroactively to cases on collateral
review of convictions that became final before the Batson
opinion. 106 S. Ct. at 2880.
I do not believe that the sixth amendment affords Mr.
Teague a basis for relief independent from the equal pro-
tection analysis set forth in Batson. In the period be-
tween Swain v. Alabama, 380 U.S. 202 (1965), and
Batson, the sixth amendment analysis was, I respectfully
suggest, simply an elliptical way for the lower courts to
avoid the precedential effect of Swain. See, e.g., McCray
v. Abrams, 750 F.2d 1113 (2d Cir. 1984), vacated, 106
S. Ct. 3289 (1986). Indeed, in Batson itself, the Supreme
Court seemed to acknowledge that the sixth amendment
argument had played this role. 106 S. Ct. at 1716 n.4.
Further, in Batson, the Court ‘ieliberately noted that ap-
plication of sixth amendm-:. principles to the petit jury
situation would indeed be difficult. Jd. at 1716 n.6.
38
Moreover, in deciding that the rule in Batson was not
retroactive for cases on collateral review, the Supreme
Court quite pointedly did not distinguish between equal
protection and sixth amendment policy concerns when
discussing Batson’s theoretical underpinnings:
By serving a criminal] defendant’s interest in neutral
jury selection procedures, the rule in Batson may
have some bearing on the truthfinding function of a
criminal trial. But the decision serves other values
as well. Our holding ensures that States do not dis-
criminate against citizens who are summoned to sit
in judgment against a member of their own race and
strengthens public confidence in the administration
of justice. The rule in Batson, therefore, was de-
signed “to serve multiple ends,” only the first of
which may have some impact on truthfinding.
Allen, 106 S. Ct. at 2880 (citations omitted). Nor can
we avoid noting that, in disposing of two cases after its
decision in Batsun where the-loOwer Courts had granted
relief to a state prisoner on sixth amendment grounds,
the Supreme Court vacated the judgments and required
reconsideration in light of Batson and its non-retroactivity
rule.' If the sixth amendment analysis of those courts
were worthy of independent review, t!.ere was ample op-
portunity to undertake the inquiry or to let the judg-
ments of the lower courts stand. Under these circum-
stances, I find the subsequent denial of certiorari in
Michigan v. Booker, 107 S. Ct. 910 (1987), when the
Sixth Circuit failed to apply Batson and Allen, worthy
of little weight in our determination. In my view, there-
fore, the court should not address Mr. Teague’s sixth
amendment formulation of the equal protection claim he
1 Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985), vacated sub nom.
Michigan v. Booker, 106 S. Ct. 3289, aff'd on reconsideration, 801
F.2d 871 (6th Cir. 1986), cert. denied, 107 S. Ct. 910 (1987) ; McCray
v. Abrams, 750 F.2d 1113 (2d Cir. 1984), vacated, 106 S. Ct. 3289
(1986).
39
is barred from making because of the non-retroactive ap-
plication of Batson.
CUDAHY, Circuit Judge, with whom CUMMINGS, Circuit
Judge, concurs, dissenting:
This case was heard originally by a panel consisting of
Judge John W. Peck of the Sixth Circuit, Judge Coffey
and me. I wrote an opinion for the majority finding that
Teague had established at least a prima facie case of a
violation of his constitutional rights. Judge Coffey dis-
sented. The opinion was circulated to the active mem-
bers of the court under Rule 16(e), and the court voted
to hear the case in banc. I dissented from the order set-
ting the case in banc; the order, together with my dissent
(which is a much-condensed version of the original panel
opinion), appears at 779 F.2d 1332 (7th Cir. 1985). I
rely on that dissent as a statement of my position on che
merits here. After that order but before the in banc
court heard oral argument, the Supreme Court decided
Batson v. Kentucky, 106 S.Ct. 1712 (1986), which, by
overruling Swain v. Alabama, 380 U.S. 202 (1965), de-
termined the merits of the underlying issue favorably to
the position of the original panel majority.
.
At the outset, I find the majority’s procedural analysis
far-fetched and overreaching, although it is unclear how
much of this really matters in the end. For example, the
majority asserts that it is “persuaded by the State’s argu-
ment that Teague did not specifically raise a Swain v.
Alabama claim in the district court and therefore he is
procedurally barred from doing so under Wainwright v.
Sykes, 433 U.S. 72 (1977).” Supra p. 4 n.6. Presumably
the majority also claims a failure to raise an equal pro-
tection claim in the state courts (which would be more
relevant to Wainwright v. Sykes). In any-event, the con-
40
tention that Teague has waived his equal protection claim
by failing to raise it in any of the courts prior to this one
(state er federal) where the peremptory challenge issue
has been argued will not stand analysis.
The short answer to these waiver arguments is that the
Supreme Court itself in Batson v. Kentucky heard ar-
gument from the petitioner, Batson, which was directed
solely to the Sixth Amendment point (and included the
Fourteenth Amendment only to the extent that that
amendment applied the Sixth Amendment to the states
and not for equal protection purposes). The Court noted
that:
(P]etitioner has argued that the prosecutor’s conduct
violated his rights under the Sixth and Fourteenth
Amendments to an impartial jury and to a jury
drawn from a cross-section of the community. Peti-
tioner has framed his argument in these terms in an
apparent effort to avoid inviting the Court directly
to reconsider one of its own precedents. On the other
hand, the State has insisted that petitioner is claim-
ing a denial of equal protection and that we must re-
consider Swain to find a constitutional violation on
this record.
106 S.Ct. at 1716 n.4.
Chief Justice Burger’s dissent in Batson makes a ma-
jor point of Batson’s failure to raise an equal protection
claim either in the state courts or in the Supreme Court:
In the Kentucky Supreme Court, petitioner dis-
claimed specifically any reliance on the Equal Protec-
tion Clause of the Fourteenth Amendment, pressing
instead only a claim based on the Sixth Amendment.
Even if the equal protection issue had been pressed
in the Kentucky Supreme Court, it has surely not
been pressed here.
41
106 S.Ct. at 1731 (Burger, C.J., dissenting). The Su-
preme Court in Batson, of course, ignored these arguments
and so should we here. Batson itself is thus on all fours
procedurally with Teague. If one has no obligation to
argue to the Supreme Court itself that it overrule one of
its own cases, one surely need not argue to a district court
that a Supreme Court case is wrong. In Batson the State
of Kentucky contended that an equal protection claim was
being made and that Swain controlled. Whether or not
Teague has made equal protection an issue in the Illinois
courts or in the district court (and the extent to which
he has is perhaps debatable),' he was answered at every
level by the state’s contention that an equal protection
claim was being made and Swain controlled. Having itself
relied upon Swain, the state is estopped from arguing
that equal protection was not properly raised.*
1 Teague contends that he made a Swain-based argument in the
district court and in this court, citing Weathersby v. Morris, 708
F.2d 1493 (9th Cir. 1983), cert. denied, 464 U.S. 1046 (1984). Tais
provides an additional answer to the waiver argument.
2 Wainwright v. Sykes, 433 U.S. 72 (1977), does not help the state
here because, whether or not Teague raised the equal protection
issue in the Illinois courts, those courts rejected Teague’s claim
on its equal protection merits. See Ulster County Court v. Allen,
442 U.S. 140, 152-54 (1979); United States ex rel. Ross v. Franzen,
688 F.2d 1181, 1183 (7th Cir. 1982). The Illinois Appellate Court
rejected Teague’s argument because he ostensibly failed to demon-
strate that blacks had been systematically precluded from jury serv-
ice, as required by Swain v. Alabama. People v. Teague, 108 Ill.
App. 3d 891, 895-96, 439 N.E.2d 1066, 1070 (1st Dist. 1982), cert.
denied, 464 U.S. 867 (1983). Since the state court denied Teague
relief on the ground that Swain controlled the result, we could reach
the equal protection claim without concerning ourselves with the
cause-and-prejudice standard.
As noted, each time Teague has argued a constitutional viola-
tion, whether in the state or federal courts, his opponent and the
court in question has cited Swain as the controlling authority. Two
issues may, of course, be so factually and logically related that
the raising of one affords the state courts a fair opportunity to
42
I thus conclude that there is no barrier based on waiver,
in the prior history of this litigation or in his arguments
made here, to Teague’s relying on Batson before this
court. Teague’s opponents in all the courts before this one
have relied on Swain to defeat Teague’s claim. Now that
Batson has trumped Swain, there can be no principled
objection to Teague’s present reliance on Batson.
This still leaves us, of course, with the problem of Bat-
son’s non-retroactivity under Allen v. Hardy, 106 S.Ct.
2878 (1986). At least argquendo, I would agree with the
majority that Teague’s claim must be sustainable on Sixth
Amendment grounds in order to avoid the Batson non-
retroactivity hurdle erected in Allen.
Teague’s case is thus entirely parallel to Booker v. Jabe,
775 F.2d 762 (6th Cir. 1985). There the Sixth Circuit, on
facts similar to those before us, used a Sixth Amendment
analysis to decide that the use of peremptory challenges
to exclude blacks from a petit jury was unconstitutional.
The State of Michigan petitioned for certiorari and, while
the petition was pending, the Supreme Court decided both
Batson and Allen. The Court then vacated the judgment
in Booker and remanded the case to the Sixth Circuit for
reconsideration in light of Batson and Allen. Michigan
v. Booker, 106 8.Ct. 3289 (1986).
On remand, the Sixth Circuit reinstated the Booker
judgment and opinion, Booker v. Jabe, 801 F.2d 871 (6th
Cir. 1986); the State of Michigan again petitioned for
certiorari but its petition was denied, Michigan v.
Booker, 107 S.Ct. 910 (1987). This sequence would, of
course, strongly suggest that the non-retroactivity of
Batson, as determined in Allen, had no application to
consider both. Williams v. Holbrook, 691 F.2d 3, 8 (1st Cir. 1982).
The majority cannot plausibly conclude that Teague is now mak-
ing a new or different argument when the other state and federal
courts which have heard the matter have determined that Swain
was dispositive.
43
Booker (and by extension to Teague). Since the Sixth
Cireuit had decided that Booker prevailed on Sixth
Amendment principles—an issue left undecided in Bat-
son—its decision (entirely consistent with the result in
Batson) was undisturbed either by Batson or by Allen.
I will, therefore, because of Allen join battle on the
merits on Sixth Amendment terrain. I will not rely di-
rectly on Batson’s equal protection analysis even though,
as shown, Teague did not waive his rights to assert an
equal protection claim in this court.
I shall, however, take account of Batson to this very
important (in fact critical) extent: The Supreme Court
in Batson reweighed the costs of imposing inhibitions
upon the exercise of the peremptory challenge and of
additional administrative burdens on the courts in order
to sustain constitutional values in every criminal jury
trial." Batson was a policy judgment by the Court that
3 Thus, Batson says:
The State contends that our holding will eviscerate the fair
trial values served by the peremptory challenge. Conceding
that the Constitution does not guarantee a right to peremp-
tory challenges and that Swain did state that their use ulti-
mately is subject to th strictures of equal protection, the
State argues that the privilege of unfettered exercise of the
challenge is of vital importance to the criminal justice system.
While we recognize, of course, that the peremptory challenge
occupies an important position in our trial procedures, we do
not agree that our decision today will undermine the contribu-
tion the challenge generally makes to the administration of
justice. The reality of practice, amply reflected in many state
and federal court opinions, shows that the challenge may be,
and unfortunately at times has been, used to discriminate
against black jurors. By requiring trial courts to be sensitive
to the racially discriminatory use of peremptory challenges,
our decision enforces the mandate of equal protection and fur-
thers the ends of justice. In view of the heterogeneous popula-
tion of our nation, public respect for our criminal justice sys-
44
these were costs which could and should be borne. 106
S.Ct. at 1724. If a like policy judgment becomes part of
the Sixth Amendment analysis, the results of that anal-
ysis become dramatically more favorable to the defend-
ant—even though his rights derive from a different
amendment. The reweighing of costs against constitu-
tional demands in Batson is a more than adequate re-
sponse to the claimed inhibitions on the exercise of per-
emptory challenges and the administrative difficulties
that the majority finds to be such decisive considera-
tions. Batson completely demolishes the majority’s argu-
ments based on policy. In this respect, the majority opin-
ion is little more than a compendium of outmoded views.
Il.
In Taylor v. Louisiana, 419 U.S. 522 (1975), the
Supreme Court held that the Sixth Amendment guaran-
teed 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 ear-
lier 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
tem and the rule of law will b. strengthened if we ensure that
no citizen is disqualified from jury service because of his race.
Nor are we persuaded by the State's suggestion that our
holding will create serious administrative difficulties. In those
states applying a version of the evidentiary standard we rec-
ognize today, courts have not experienced serious administra-
tive burdens, and the peremptory challenge system has sur-
vived. We decline, however, to formulate particular procedures
to be followed upon a defendant's timely objection to a pros-
ecutor’s challenges.
Batson, 106 S.Ct. at 1724 (emphasis supplied) (footnotes omitted).
45
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 demo-
cratic society and a representative government’,” 419
U.S. at 527, 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 re-
quirement has solid foundation. The purpose of a
jury is to guard against the exercise of arbitrary
power—to make available the commonsense judg-
ment of the community as a hedge against the over-
zealous or mistaken prosecutor and in preference to
the professional or perhaps overconditioned or biased
response of a judge... . This prophylactic vehicle
is not provided if the jury pool is made up of only
special segments of the populace or if large, distinc-
tive groups are excluded from the pool.
Id. at 530 (citation omitted).
As the majority correctly points out, 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. The majority
opinion devotes many pages to establishing this point,
though I must confess that I am at a loss to explain
why. No one seems to quarrel with this proposition,
least of all Teague. Appellant’s Brief at 21.
Teague’s position, which was adopted by the panel
opinion and which even the majority here seems to en-
dorse at one point in its opinion, supra p. 12, is that al-
though there is no right to be tried by a representative
petit jury, the Sixth Amendment guarantees the pos-
sibility that the jury selected will contain a representa-
tive cross-section of the community. In Williams v.
Florida, 399 U.S. 78 (1970), the Court held that a six-
person jury was constitutionally acceptable; in Ballew
46
v. 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 pos-
sibility 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 in-
timidation, and to provide a fair possibility for obtain-
ing 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 as membership de-
creases below six,” 435 at 242 (emphasis added), and
held that “any further reduction... that prevents
juries from truly representing their communities, at-
tains constitutional significance,” id. at 239. See also id.
at 245 (White, J., concurring) ; id. at 246 (Brennan, J.,
concurring).
Thus, although the Sixth Amendment does not guaran-
tee a representative trial jury, it does guarantee the
possibility of a representative jury. It would be odd if
the right to a representative jury pool did not reach,
in some way or other, into the trial jury, that is, if the
Sixth Amendment’s reach ended with the first stage of
jury selection. If the Sixth Amendment has implications
for the jury pool, it can only be because it has some im-
plication for the jury that actually sits at trial. As the
Supreme Judicial Court of Massachusetts said in Com-
monwealth v. Soares, 387 N.E.2d 499, 513 (Mass.), cert.
denied, 444 U.S. 881 (1979):
It is not enough that there be a_ representative
venire or panel. The desired interaction of a cross-
section of the community does not occur there; it is
only effectuated within the jury room itself.
Thus, it would be nonsensical if the Sixth Amendment’s
requirement of representativeness in the jury pool were
not intended to have some sort of effect in the jury room.
47
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 com-
munity will be represented on the jury, and that is the
conclusion that the Supreme Court drew in Williams,
399 U.S. 78, and Ballew, 435 U.S. 223. The six-person
jury is constitutionally acceptable because it is large
enough to allow for the possibility that the jury will be
representative; the five-person jury is not acceptable be-
cause it does not. The majority cites Ballew and Wil-
liams for the proposition that “merely decreasing the
possibility of obtaining a fair cross section of the com-
munity on the petit jury does not violate the sixth
amendment right to a trial by an impartial jury.”
Supra p. 21. The relevant question, however, is whether
the possibility is decreased for a constitutionally permis-
sible reason. Excluding jurors on the hasis of race is
not a constitutionally acceptable reason for reducing the
possibility of a representative jury, and the majority
makes no attempt to meet this argument. Race-hased
peremptory challenges obviously impact upon the process
of jury selection in a way that reduces the statistical
probability of a representative jury. Fields v. Colorado,
732 P.2d 1145, 1155 (Colo. Sup. Ct. 1987) (“The right
to trial by an impartial jury does guarantee that the
possibility of a petit jury in a given case representing
a fair cross-section of the community will not be limited
arbitrarily by the discriminatory and systematic use of
peremptory challenges.’’) .*
The majority asserts that in this case “the record is
barren of any proof or testimony establishing community
prejudice towards Teague.” Supra p. 21. The crucial
*In Fields the Colorado Supreme Cour: held that a prosecutor’s
use of peremptory challenges to systematically exclude Spanish-
surnamed veniremen from a jury deprives a defendant of his right
to an impartial jury under the Sixth Amendment of the federal
Constitution.
48
question, however, is not whether the particular jurors
selected were prejudiced against Teague but whether the
prosecution used its peremptory challenges to reduce the
possibility that blacks would be sitting on the jury, and
there is overwhelming evidence that the state did just
that. The prosecution and the defense each had ten
peremptory challenges. The state exercised every single
one of its challenges to exclude a black venireman.’ After
the state had used six of its peremptory challenges and
then again after it had used all ten of its challenges, the
defense moved for a mistrial on the ground that the state
was using its challenges only against black jurors. In
responding to the second motion, the state explained that
it had excused some of the veniremen because they were
very young and that it had excused others because it was
attempting to obtain an equal number of men and
women. The state appellate court found the prosecution’s
explanation unpersuasive, 439 N.E.2d 1066, 10€9-70, and
after examining the manner in which the state exercised
its peremptory challenges, I would agree that the state’s
proffered explanations were pretextual.°®
5 It is true that the defense used one of its challenges to excuse
a black; however, the husband of that juror was a policeman and
since Teague’s trial involved the shooting of a policeman, that deci-
sion would seem to be justified on grounds apart from race.
* After its first challenge, every juror rejected by the state was
a black woman. At that point, at which the only jurors seated were
four males, the prosecution had already rejected five black women.
It had also accepted three women, ultimately rejected by the
defense. It is highly improbable, therefore, that in exercising its
first six challenges the state was motivated to exclude women in
order to achieve a balance of males and females. Of the next four
jurors, all were female; the two whites were accepted by the state
and seated; the two blacks were rejected by the state. By the
time the tenth juror was seated, seven were male and only three
female. Yet the state accepted two males, rejected by the defense,
and rejected two black females. The last two women—zgiving 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
49
When members of a certain group can be excluded
from service on a particular petit jury, the negative
effect upon defendants who happen to belong to that
group is not difficult to imagine; and it will be especially
severe where the group suffers from community preju-
dice. In such circumstances, the defendant may not even
have the protection of the prosecutor’s usual concern to
bring only well-supported cases into court, for the prose-
cutor will know that the defendant’s group will not be
represented and that he can count to some extent upon
the prejudice of the community. The protection provided
by the Sixth Amendment lies in the general requirement
that the state cannot interfere with the possibility that
the jury will be representative. And it is that require-
ment that explains the need for the jury pool to be
actually representative, which would otherwise be a
great mystery. And it is that requirement which de-
mands a process of getting from the jury pool to the
trial jury which does not affect unjustifiably the statis-
tical probability of any group’s being represented.
Further, in a case of this sort the perception is almost
as important as the reality. Knowledge that blacks could
be excluded at will by prosecutors trying black defend-
ants, for example, would lead to cynicism among blacks
in viewing the jury system. The importance of general
confidence in the accuracy and reliability of the penal
system—confidence that the guilty tend to be convicted
and the innocent tend to be acquitted—should not be
underestimated; such confidence is crucial to the deter-
the state had exhausted its peremptories. In light of this pattern,
the state’s explanation that it sought to balance men and women
is very unpersuasive.
The state also claimed to be excluding jurors of “very young
years.” The state rejected four jurors who were college or business
school students, or recent graduates; all were black women. The
systematic exclusion of younger jurors is perhaps as pernicious
as the exclusion of blacks; but in any case, this rationale cannot
by itself explain the state’s action.
50
rent effect punishment must have. We do not increase
general respect for the law by simply making it easier
to get convictions; and we cannot increase the respect
a certain group has for the law by simply making it
easier to convict members of that group. There must be
the accompanying perception that the law operates with
some precision, tending to convict all those and only
those who are guilty. In the extreme case, the law would
convict members of a group arbitrarily or at random;
and of course in that case punishment would have no
effect at all. But if members of a group that suffers
from prejudice can be tried before juries from which fel-
low group members have been excluded, to some extent
convictions may be perceived as attributable to prejudice
against the group and therefore arbitrary. To the extent
that they are so perceived, the purpose of punishment
is defeated.”
7 A shocking number of defendants [in Illinois had] alleged
fas of 1983] that prosecutors used peremptory challenges to ex-
clude black people from the juries that convicted them:
People v. Payne (1983), 99 Ill. 2d 135, 75 Ill. Dec. 643, 457
N.E.2d 1202; People v. Yates (1983), 98 Ill. 2d 502 at 540,
75 Ill. Dee. 188, 456 N.E.2d 1369 (Simon, J., dissenting) ;
People v. Cobb (1983), 97 ill. 2d 465, 74 Ill. Dee. 1, 455
N.E.2d 31; People v. Williams (1983), 97 Ill. 2d 252, 73
Ill. Dec. 360, 454 N.E.2d 220; People v. Bonilla (1983), 117
Ill. App. 3d 1041, 73 Ill. Dec. 187, 453 N.E.2d 1322; Peo-
ple v. Gosberry (1983), 93 Ill. 2d 544, 70 Ill. Dec. 468, 449
N.E.2d 815; People v. Davis (1983), 95 Til. 2d 1, 69 Tl. Dec.
136, 447 N.E.2d 353; People v. Gilliard (1983), 112 Ill. App.
3d 799, 68 Ill. Dec. 440, 445 N.E.2d 1293; People v. New-
some (1982), 110 Ill. App. 3d 1043, 66 Ill. Dee. 708, 443
N.E.2d 634; People v. Turner (1982), 110 Ill. App. 3d 519,
66 Ill. Dec. 211, 442 N.E.2d 637; People v. Teague (1982),
108 Ill. App. 3d 891, 64 Ill. Dec. 401, 439 N.E.2d 1066;
People v. Belton (1982), 105 Ill. App. 3d 10, 60 Ill. Dec.
881, 433 N.E.2d 1119; People v. Dixon (1982), 105 Ill. App.
3d 340, 61 Ill. Dec. 216, 434 N.E.2d 369; People v. Gaines
(1981), 88 Ill. 2d 342, 58 Ill. Dec. 795, 430 N.E.2d 1046;
People v. Mims (1981), 103 Ill. App. 3d 673, 59 TIl. Dee.
369, 431 N.E.2d 1196; People v. Lavinder (1981), 102 Ill.
51
I think it is beyond dispute, therefore, that although
the Sixth Amendment does not give the defendant the
rignt to a representative trial jury, it assures him of the
possibility that his jury will contain members of the vari-
ous groups in his community, a possibility that cannot be
App. 3d 662, 58 Ill. Dec. 301, 430 N.E.2d 243; People v.
Clearlee (1981), 101 Ill. App. 3d 16, 56 IIl. Dec. 600, 427
N.E.2d 1005; People v. Vaughn (1981), 100 Ill. App. 3d
1082, 56 Ill. Dec. 508, 427 N.E.2d 840; People v. Tucker
(1981), 99 Ill. App. 3d 606, 54 Ill. Dec. 646, 425 N.E.2d
511; People v. Allen (1981), 96 Ill. App. 3d 871, 52 IIl. Dec.
419, 422 N.E.2d 100; People v. Bracey (1981), 93 Ill. App.
3d 864, 49 Ill. Dec. 202, 417 N.E.2d 1029; People v. Smith
(1980), 91 Ill. App. 3d 523, 47 Ill. Dec. 1, 414 N.E.2d 1117;
People v. Fleming (1980), 91 Ill. App. 3d 99, 46 Ill. Dec.
217, 413 N.E.2d 1330; People v. Attaway (1976), 41 IIl.
App. 3d 837, 354 N.E.2d 448; People v. Thornhill (1975),
31 Ill. App. 3d 779, 333 N.E.2d 8; People v. King (1973),
54 Ill. 2d 291, 296 N.E.2d 731; People v. Petty (1972), 3
Ill. App. 3d 951, 279 N.E.2d 509; People v. Fort (1971),
133 Ill. App. 2d 473, 273 N.E.2d 439; People v. Butler
(1970), 46 Ill. 2d 162, 263 N.E.2d 89; People v. Cross
(1968), 40 Ill. 2d 85, 237 N.E.2d 437; People v. Dukes
(1960), 19 Ill. 2d 532, 169 N.E.2d 84; People v. Harris
(1959), 17 Ill. 2d 446, 161 N.E.2d 809.
People v. Payne, 99 Ill. 2d 135, 152-53, 457 N.E.2d 1202, 1210-11
(1983) (Simon, J., dissenting).
[I]t is an open secret that prosecutors in Chicago and else-
where have been using their peremptory challenges to sys-
tematically eliminate all blacks, or all but token blacks, from
juries in criminal cases where the defendants are blacks.
People v. Gilliard, 112 Ill. App-3d 799, 807, 445 N.E.2d 1293, 1299
(1983) (footnote omitted), rev'd, 96 Il!. 2d 544, 454 N.E.2d 330
(1983).
This problem is not unique to Illinois. After the Supreme Court
decided Griffith v. Kentucky, 107 S.Ct. 708 (1987), which held that
Batson would be applied retroactively to cases pending on direct
state or federal review when Batson was decided, the Court granted
certiorari in 24 cases from various jurisdictions in which a Batson
claim was raised, vacated the judgment in each case and remanded
for reconsideration in light of Griffith.
52
impaired by the exercise of peremptory challenges based
solely on the race of the prospective juror.
The majority does not really address why it believes
that the exercise of peremptory challenges solely on ‘the
basis of a juror’s race does not violate the Sixth Amend-
ment. Instead, it seems to rest its opinion on the prac-
tical problems involved in restricting the exercise of
peremptory challenges. I do not disagree that the peremp-
tory challenge is itself an important guarantor of an im-
partial jury. The peremptory challenge allows each side
to eliminate jurors it suspects, for reasons it cannot ar-
ticulate 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. Hence, the peremptory challenge has an impor-
tant function, along with the challenge for cause, in our
rough-and-ready system for arriving at impartiality. The
problem I find with the majority opinion is that the Su-
preme Court in Batson has already rejected the argument
that the exercise of peremptory challenges cannot be po-
liced without destroying the effectiveness of the chal-
lenges. The majority is thus pursuing a contention that
is unrelated to any particular constitutional doctrine and
which has been thoroughly discredited by the Supreme
Court in Batson.
I agree with the majority that the problems of main-
taining the effectiveness of the peremptory challenge and
of relieving the administrative burden on courts are the
considerations which led the Court for many years to cling
to Swain. The Court has now decided, however, that the
effectiveness and credibility of the criminal justice system
is at stake and these problems which traditionally aroused
concern must simply be accepted and solved. This momen-
53
tous policy decision by the Supreme Court opens the way
just as much to reconsideration of the issues under the
Sixth Amendment as under the equal protection clause.
The “practical” arguments of the majority have already
been answered by the highest judicial authority, and I
should think they would be considered anachronisms
rather than a source of guidance to this court in the post-
Batson era.
For the foregoing reasons, I respectfully dissent.
54
SUPREME COURT OF THE UNITED STATES
No. 87-5259
FRANK DEAN TEAGUE,
Petitioner
Vv.
MICHAEL LANE, Director, Illinois
Department of Corrections, et al.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
ON CONSIDERATION of the motion for leave to proceed
herein in forma pauperis and of the petition for writ of
certiorari, it is ordered by this Court that the motion to
proceed in forma pauperis be, and the same is hereby,
granted; and that the petition for writ of certiorari be,
and the same is hereby, granted.
March 7, 1988
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.