Petitioners Brief — Teague v. Lane

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FILED

r pupreme our, Vo.

~ 1 way 12 1988

No. 87-5259

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1987

FRANK DEAN TEAGUE,

Petitioner,

MICHAEL LANE, Director, Illinois Department of

Corrections, et al.

Respondents,

On Writ Of Certiorari To The United States

Court Of Appeals For the Seventh Circuit

BRIEF FOR THE PETITIONER

THEODORE A. GOTTFRIED

Appellate Defender

MICHAEL J. PELLETIER

Deputy Defender

PaTRICIA UNSINN*

MARTIN S. CARLSON

Assistant Appellate Defenders

Office of the State Appellate Defender

State of Illinois Center

100 West Randolph Street, Suite 5-500

Chicago, Illinois 60601

(312) 917-5472

*Counsel of Record

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662

QUESTIONS PRESENTED FOR REVIEW

Whether a prosecutor's use of peremptory challenges to

exclude members of a distinctive group from the petit

jury violates the Sixth Amendment fair cross-section

requirement.

Whether, consistent with Justice Harlan’s view of

retroactivity, Batson v. Kentucky should at a minimum be

applied retroactively to all convictions not final when

certiorari was denied in McCray v. New York.

Whether Swain v. Alabama permits the prosecution's

volunteered reasons for its exercise of its peremptory

challenges to be examined to determine if it has engaged

in racial discrimination.

TABLE OF CONTENTS

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THE PROSECUTION’S UsE Or THE PEREMPTORY

CHALLENGE To DEFEAT THE POossIBILITY THAT

THE PetitJuRY WILL REPRESENT A Fair Cross-

SECTION OF THE COMMUNITY VIOLATES THE

DEFENDANT'S SIXTH AMENDMENT RIGHT To A

FarR AND IMPARTIAL JURY. ...........e-eceeees

A. The Remedy For Discriminatory Use Of The

Peremptory Challenge Provided By Batson v.

Kentucky Does Not Adequately tect The

Interests Advanced By The Fair Cross-Section

ee ee

B. The Sixth Amendment Guarantees The

Accused The Selection Of A Petit Jury In

Accordance With Procedures Which Provide A

Fair Possibility Of Obtaining A Jury Repre-

sentative Of The Community. ..............

C. Permitting A Distinctive Group To Be

Excluded From The Petit Jury By Use Of The

Peremptory Challenge Is Inconsistent With

The Constitutional Concept Of A Jury Trial. .

D. Existing Standards May Be Employed To

Prove A Violation Of The Fair Cross-Section

E. No Significant State Interest Was Served By

The Total Exclusion Of Black Jurors From Peti-

tioner’s Jury As A Result Of The Prosecution’s

Use Of Its Peremptory Challenges. ........

RETROACTIVE APPLICATION OF THE RULE OF

BATSON V. KENTUCKY SHOULD BE EXTENDED AT

A MINIMUM To THOSE DEFENDANTS WHOSE Con-

VICTIONS WERE Not FINAL WHEN CERTIORARI

Was DenteD IN McCray v. New YorRK. .......

A. Because The Rule Of Swain v. Alabama Was

Not The Dominant Constitutional Standard

When Certiorari Was Denied In McCray v.

New York, Batson Should Be Retroactively

ag To All Cases Then Pending On Direct

OME, oc oc cccccectesenseeanede

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Table of Contents Continued

Page

B. Extension Of The Benefits Of The Rule Of Bat-

son To All Cases Pending On Direct Review

When Certiorari Was Denied In McCray Would

Not Be Inconsistent With The Result Reached

i Cee cccencceesccecess

C. No Reasoned Basis Exists To Extend The Ben-

efits Of The Batson Rule To Litigants In Cases

Pending On Direct Review And To Deny Relief

To Equally Deserving Litigants Who Are Seek-

ing Collateral Relief From Their Convictions.

III. Swain v. ALABAMA PERMITS A PROSECUTOR’S

VOLUNTEERED EXPLANATION For His EXERCISE

Or His PEREMPTORY CHALLENGES To BE EXAm-

INED To DETERMINE WHETHER THE EXPLANA-

TION Is LEGITIMATE OR A MERE PRETEXT For

RACIAL DISCRIMINATION. ...........ceeeeeees

A. An Equal Protection Violation Can Be Estab-

lished Consistent With Swain Other Than By

Proof That The Prosecution Consistently And

Continuously Excluded A Racial Group From

EERE danaccccsecséceccceces

B. The Explanation Volunteered By The Pros-

ecutor For His Peremptory Challenge Of Ten

Black Jurors Is A Pretext And Demonstrates

That The Prosecutor's Actual Motivation Was

Racial Discrimination. ....................

C. The Failure Of Petitioner To Raise His Swain

Claim In State Court Does Not Bar That Claim

As A Ground For Relief On Collateral Review

Where It Was Fairly Presented To The State

Court And Rejected On Its Merits. .........

TABLE OF AUTHORITIES

Cases Page

Allen v. Hardy, 478 U.S. ——, 106 8.Ct. 2878

SN es odadus che eusiGenuaeneeueensere 5, 22, 26, 27

Ballard v. United States, 329 U.S. 187 (1946) ......... 21

Ballew v. Georgia, 485 U.S. 223 (1978). .......... 12, 13, 15

Batson v. Kentucky, 476 U.S. 79 (1986). ........... passim

Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985), vacated, 106

S.Ct. 3289, affd on reconsideration, 801 F.2d 871

(6th Cir. 1986), cert. denied, 107 S.Ct. 910 (1987)... 11

Brown v. Louisiana, 447 U.S. 323 (1980). ........... 26, 27

Commonwealth v. Henderson, 497 Pa. 23, 488 A.2d 951

PE co cca uek gue PaAeaeeeuued eb ce uvanseueeeus 39

Desist v. United States, 394 U.S. 244

SL < ccbaucdedaweaedewstaeae 22, 23, 24, 25, 30, 31

Duncan v. Louisiana, 391 U.S. 145 (1968) ............ 13

Duren v. Missouri, 439 U.S. 357

SARS ete t LETS GF Sek eae ee 4, 10, 15, 16, 18

Engle v. Issac, 456 U.S. 107 (1982). ..........22. ee eee 32

Fay v. Noia, 372 U.S. 391 (1963)............. eee eees 31

Gaines v. State, 404 So.2d 557 (Miss. 1981)............ 39

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

denied, 108 S.Ct. 233 (1987). ....... ccc cccecees 33, 37

Gilliard v. Mississippi, 464 U-S. 867 (1983) ........... 24

Glasser v. United States, 315 U.S. 60 (1941)......... 14, 21

Granberry v. Greer, 481 U.S. —_, 107 S.Ct. 1671

Ne ag aie aa al 6, 38

Griffith v. Kentucky, 479 U.S. —_, 107 S.Ct. 708

NE sin oc 64 hase a eeeneebessiadneniateses 5, 21, 30

Ham v. South Carolina, 409 U.S. 524 (1973) .......... )

Hankerson v. North Carolina, 432 U.S. 233 (1977) .... 29

Linkletter v. Walker, 381 U.S. 618 (1965). ...... 6, 22, 26, 28

Lockhart v. McCree, 476 U.S. 162 (1986). ...... 8, 14, 15, 17

Mackey v. United States, 401 U.S. 667

te he oe a 22, 23, 24, 25, 30, 31

McClesky v. Kemp, 481 U.S. —~, 107 S.Ct. 1756 (1987) = 27

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

vacated, 106 S.Ct. 3289 (1986) .. 1... cece eee eeee 11

McCray v. New York, 461 U.S. 961 (1983)......... 5, 22, 23

Table of Authorities Continued

Michigan v. Payne, 412 U.S. 47 (1973) ............05. 28

People v. Crowder, 161 Ill. App.3d 1009, 515 N.E.2d 783

Mh vk b<ds05skGas ddan kncesciceus 10

People v. Seals, 153 Ill. App.3d 417, 505 N.E.2d 1107 (1st

SE Gatudskduudeecctsekeweie ls caekeses eas 10

People v. Teague, 108 Ill. App.3d 891, 439 N.E.2d 1066

(1st Dist. 1982), cert. denied, 464 U.S. 867

A UGls ce ciuhuncucealeesscadesecuaes 22, 37, 39

Peters v. Kiff, 407 U.S. 493 (1972).......4......... 13, 14

Re Murchison, 349 U.S. 133 (1954)...............000. 14

Ristaino v. Ross, 424 U.S. 589 (1976). ............00.. 27

Roberts v. Russell, 392 U.S. 293 (1968)............... 29

Rosales-Lopez v. United states, 451 U.S. 182 (1981).... 9

Rose v. Lundy, 455 U.S. 509 (1982)................... 32 .

Shea v. Lowisiana, 470 U.S. 51 (1985)............... 22, 31

Smith v. Texas, 311 U.S. 128 (1940) .................. 14

Solem v. Stwmes, 465 U.S. 638 (1984) .........0..00.. 26

State v. Grady, 93 Wis. 1, 286 N.W.2d 607 (Wis. App.

Sao renides ken deukee ns déce tu dks a5 oss Gees 39

State v. Thompson, 276 S.C. 616, 281 S.E.2d 216 (1981) 39

State v. Ucero, 450 A.2d 809 (R.I. 1982) ...........-. 39

Stone v. Powell, 428 U.S. 465 (1976). ..............05. 32

Strauder v. West Virginia, 100 U.S. 303 (1880)....... 29, 33

Sumner v. Mata, 449 U.S. 539 (1981)................. 32

Swain v. Alabama, 380 U.S. 280 (1965). ..... 5, 6, 23, 33-35

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

Teague v. Lane, 820 F.2d 832 (7th Cir. 1987)......... 33, 38

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946). 11, 13, 15

Thomas v. Blackburn, 623 F.2d 383 (5th Cir. 1980)..... 39

Ulster County Court v. Allen, 442 U.S. 140 (1979). 6, 39, 40

U.S. ex rel. Allen v. Hardy, 556 F.Supp. 464 (N.D. II.

Nd Sg MI a PMA ESE IBS BSCE R KURI, Latah ne! AS teas 26

United States v. Johnson, 457 U.S. 537 (1982)... 22, 30, 31

wea! Sullivan v. Fairman, 731 F.2d 450 (7th Cir.

PCOSCHCHSCHT OSC HEHECHCEEHEOECHHHOHHOSHHHOSES ESE EEES 3

Wainwright v. Sykes, 433 U.S. 72 (1977)........ 6, 7, 32, 38

Table of Authorities Continued

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

denied, 464 U.S. 1046 (1984) .................06. 33

Williams v. Florida, 399 U.S. 78 (1970).......... lt, 12, 13

Williams v. Holbrook, 691 F.2d 3 (1st Cir. 1982) ....... 40

STATUTES Page

Pee, eee. Ga, Ge, MO, BUIPMO) . oc ccccecccecesoces 1

MISCELLANEOUS

J. Appelman, Preparation and Trial (1967) ............ 9

M. Belli, 3 Modern Trials (2d ed. 1981) ............... 4

J. Doherty, Ready For Trial Your Honor (1972)........ 9

The Prosecutor’s Deskbook (Healy and Manak ed. 1971) 9

U.S. Bureau of the Census, County and City Data Book

DEE KdGkbeuusacendenanaenaeeshiatsekennvans 17

OP) IONS BELOW

The en banc opinion of the court of appeals (J.A. 14) is

reported at 820 F.2d 832 (7th Cir. 1987). The order vacat-

ing the proposed panel opinion and ordering rehearing en

banc pursuant to circuit rule 16(e) (J.A. 7) is reported at

779 F.2d 1332 (7th Cir. 1985). The district court opinion

denying habeas corpus relief (J.A. 5) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 11, 1987. The petition for writ of certiorari was filed

on August 10, 1987 and was granted on March 7, 19838.

The jurisdiction of this Court rests upon 28 U.S.C.

1254(1).

STATEMENT OF THE CASE

Frank Teague, a black man, was convicted of armed

robbery of an A&P supermarket and attempt murder of

police officers who were shot at following the robbery. His

defense was insanity. People v. Teague, 108 Ill. App.3d

891, 489 N.E.2d 1066 (1st Dist. 1982) (Campbell, J., dis-

senting). The jurors selected and sworn to decide the

issue of guilt or innocence were white, the prosecution

having elected to exercise all ten of the peremptory chal-

lenges afforded it by statute, Ill.Rev.Stat., Ch. 38,

§ 115-4(e), to excuse prospective jurors who were black.

Those excluded jurors included nine women and one

man of varying backgrounds and ages. Defense counsel

excused a black juror who was married to a police officer.

(J.A. 3)

The defense made t wo motions for mistrial complaining

of the prosecutor's exclusion of the black jurors, one after

six black jurors had been peremptorily challenged by the

State (J.A. 2), and the second at the conclusion of jury

selection. In response to the second motion, the pros-

ecutor represented that he was attempting to achieve a

balance of men and women and age groups. He noted

defense counsel had used one of his challenges against a

black jusur and that the prosecution had excused a white

juror during selection of the alternates. The trial judge

made no finding as to the validity of the State’s proffered

explanation and merely denied the defense motion. (J.A.

5, 4)

The Illinois Appellate Court declined to grant Teague

relief from his conviction because he had failed to demon-

strate systematic exclusion of black jurors as was his

burden according to Swain v. Alabama, 380 U.S. 202

(1965). The court refused to recognize any other claimed

basis for relief. With respect to the prosecutor's represen-

tation that he had exercised his challenges to achieve a

balance of men, women and age groups, the court

observed “an examination of the record shows that white

jurors who fell within the men, women and age groups to

which the State referred were not excused peremptorily

by the State.” Teague, 439 N.E.2d at 1069, 1070. Rehear-

ing was denied by the appellate court, the Illinois

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

449 N.E.2d 810 (Ill. 1983) (Simon, J., dissenting) and this

Court denied a petition for writ of certiorari. Teague v.

Illinois, 464 U.S. 867 (1983) (Marshall and Brennan, J.J.,

dissenting).

On March 5, 1984, Teague filed a petition for writ of

habeas corpus in the federal district court, complaining

his Sixth and Fourteenth Amendment rights were vio-

lated by the prosecution’s exclusion of black jurors by

peremptory challenge. (Petition, p. 4) On August 8, 1984

the district court denied relief and granted Respondents

motion for summary judgment, concluding Teague’s claim

was foreclosed by Swain and decisions of the court of

appeals declining to depart from Swain. The court found,

however, that Teague’s arguments were persuasive. (J.A.

5, 6)

A divided panel of the court of appeals agreed with

Teague that the Sixth Amendment does bar use of the

peremptory challenge to deprive an accused of the fair

possibility of obtaining a representative jury, but its opin-

ion was vacated and the cause set for rehearing en banc

pursuant to circuit rule 16(e). U.S. ex rel. Teague v. Lane,

779 F.2d 1332 (7th Cir. 1985) (Cudahy, J., dissenting).

(J.A. 7) After reargument en banc, the court determined

that the Sixth Amendment fair cross-section requirement

had no application to the petit jury, that the intervening

decision in Batson v. Kentucky, 476 U.S. 79 (1986) had no

retroactive application because Teague’s conviction was

final, and that, assuming it was not procedurally barred,

no Swain equal protection violation had been demon-

strated. Teague v. Lune, 820 F.2d 832 (7th Cir. 1987)

(Cudahy and Cummings, JJ., dissenting). (J.A. 14) On

March 7, 1988, this Court granted Teague’s petition for

writ of certiorari in which all three issues are presented to

the Court. (J.A. 54)

SUMMARY OF ARGUMENT

1. Batson v. Kentucky, 476 U.S. 79 (1986) recognized

that a jury cannot perform its function of safeguarding the

accused against the arbitrary exercise of power by a pros-

ecutor or judge if citizens are excluded from jury service

by the prosecutor's exercise of the peremptory challenge

on account of race. This same injury occurs whenever any

distinctive group in the community is denied an oppor-

tunity to serve on the petit jury, but the Batson remedy is

limited to those cases where the accused is a member of

the excluded group. No less protection from the exercise

of arbitrary power should be afforded to an accused who is

not a member of a group excluded from the jury.

Elimination of abuse of the peremptory challenge can

be achieved by recognizing that the Sixth Amendment

guarantees the accused a jury selected in accordance with

procedures that allow a fair possibility for the jury to

reflect a cross section of the community. The defendant is

not entitled to a jury of any particular composition and no

requirement exists that the petit jury mirror the dis-

tinctive groups in the population, Taylor v. Louisiana,

419 U.S. 522 (1975), but the right of the defendant to have

his jury drawn from a source fairly representative of the

community contemplates the possibility that the petit

jury will be similarly representative. Inclusion of dis-

tinctive groups in the jury pool has importance because it

provides the opportunity for members of those groups to

function as petit jurors. Permitting a prosecutor to use

the peremptory challenge as a tool to cull distinctive

groups from the petit jury would be inconsistent with our

democratic heritage, undermine public confidence in the

fairness of the criminal justice system by creating the

appearance of unfairness, and deny the accused the bene-

fit of the common-sense judgment of the community by

impairing the representative character of the jury.

The standards of Duren v. Missouri, 439 U.S. 357

(1979) can be employed to determine whether the selec-

tion of the petit jury comports with the Sixth Amend-

ment. To establish a prima facie case of a violation of the

fair cross-section requirement defendant would show 1)

the group allegedly excluded is a distinctive group in the

community; 2) representation of this group in the com-

munity is not fair and reasonable in relation to the number

of such persons in the community, i.e., comparison with

census figures indicate it has been disproportionately

excluded; and 3) the underrepresentation is attributable

to the prosecution's exercise of peremptory challenges,

not excusals for cause or chance circumstances inherent in

a random selection process. To rebut this prima facie case,

the State must show a significant state interest justifies

the underrepresentation of the excluded group. This bur-

den would at least require that a neutral explanation for

the challenge be offered but wouid not require justifica-

tion equivalent to a challenge for cause.

2. Justice Harlan’s view of retroactivity was adopted

with respect to cases pending on direct review in Griffith

v. Kentucky, 479 U.S. ___, 107 S.Ct. 708 (1987). Applica-

tion of his analysis of retroactivity to cases pending on

collateral review should result in the rule of Batson being

applied to all cases pending on direct review when cer-

tiorari was denied in McCray v. New York, 461 U.S. 961

(1983). Justice Harlan believed a claim contained in a

habeas corpus petition should be judged according to the

constitutional standard dominant at the time the convic-

tion became final to perform the function of habeas review

of forcing state courts to toe the constitutional mark. With

the denial of certiorari in McCray, the dominance of the

long criticized rule of Swain v. Alabama 380 U.S. 202

(1965) ended. The constitutional correctness of any con-

viction which became final thereafter should not be

judged by the standards of Swain. Extension of the rule of

Batson to this class of cases would correct any inequity

resulting from this Court’s postponement of reexamina-

tion of the burden defendant would be required to sustain

to establish an equal protection violation.

This limited extension of the benefits of Batson would

not be inconsistent with the result reached in Allen v.

Hardy, 478 U.S. __, 106 S.Ct. 2878 (1986). Allen's con-

viction was final when certiorari was denied in McCray.

Application of the three-pronged test of Linkletter v.

Walker, 381 U.S. 618 (1965) to cases pending on direct_

review when McCray signaled a change of law weighs in

favor of retroactive application of Batson. The rule of

Batson is designed to-lminate a practice which threatens

the ability of the jury to perform its truth-finding func-

tion. A prosecutor could not have justifiably relied on

Swain to practice racial discrimination in jury selection

and the impact of retroactive application of Batson would

be minimal, the number of affected cases being limited.

Justice Harlan was persuaded that new rules should be

applied to all nonfinal cases because retroactivity is an

essential attribute of judicial decision making and dispa-

rate treatment of similarly situated defendants is intol-

erable. These considerations apply with equal force to

convictions which are final. The interests of finality and

allocation of resources, which Justice Harlan believed

required that a distinction be made between final and

nonfinal cases, are inadequate justifi ation “or the dif-

ferential treatment of cases on direct and collateral

review. Those interests are adequate. protected by the

limitation placed on the availability of fedurai habeas cor-

pus review by Wainwright v. Sykes, 433 U.S. 72 (1977).

Maintenance of a direct/collateral distinction is unneces-

sary to promote those same interests and should be aban-

doned.

3. Swain v. Alabar a, 380 U.S. 202 (1965) did not

depart from the principle that discriminatory jury selec-

tion practices violate the Equal Protection Clause. Swain

created a presumption that a prosecutor acts for legiti-

mate reasons in exercising his peremptory challenges to

preserve the peremptory nature of the challenge. When a

prosecutor volunteers his reasons for his exercise of his

peremptory challenge, those challenges need not be pre-

sumed to be legitimately exercised in order to avoid limit-

ing the effectiveness of the challenge. The prosecutor's

explanation should be examined to determine if the pur-

poses of the challenge are being perverted and racial

discrimination is being practiced.

Although no Swain-based claim was made in state

court, this claim is not barred by procedural default pur-

suant to Wainwright v. Sykes, 433 U.S. 72 (1977).

Respondents failed to raise this defense when this claim

was argued in the district court and the court of appeals.

The state court was given a fair opportunity to review the

claim and it has obvious merit. Petitioner argued in state

court that the prosecutor's explanation for his exercise of

his peremptory challenges was a pretext for racial dis-

crimination. The State argued the merits of this claim

should be judged by the standards of Swain. The state

court held Swain afforded petitioner no basis for relief. If

the defense of procedural default has not been waived in

these circumstances, Cf Granberry v. Greer, 481 U.S.

___, 107 S.Ct. 1671 (1987), the action of the state court

rejecting the claim on its merits allows a federal court to

review the claim. Ulster County Court v. Allen, 442 U.S.

140 (1979).

ARGUMENT

I. THE PROSECUTION’S USE OF THE PEREMPTORY

CHALLENGE TO DEFEAT THE POSSIBILITY THAT

THE PETIT JURY WILL REPRESENT A FAIR CROSS

SECTION OF THE COMMUNITY VIOLATES THE

DEFENDANT’S SIXTH AMENDMENT RIGH™ TO A

FAIR AND IMPARTIAL JURY.

In Batson v. Kentucky, 476 U.S. 79, 84 n.4 (1986), this

Court declined to decide whether the fair cross-section

requirement of the Sixth Amendment places any limita-

tion on the prosecution’s ability to use peremptory chal-

lenges to exclude black persons from jury participation.

Although the soundness of extending the fair cross-sec-

tion requirement to the petit jury was questioned in Lock-

hart v. McCree, 476 U.S. 162 (1986), the issue was again

not ultimately resolved because the excluded group in

issue, Witherspoon-excludables, was not found to be dis-

tinctive for fair cross-section purposes. The ten jurors

peremptorily excused by the prosecution from Teague’s

jury were black persons, members of a group this Court in

Lockhart acknowledged to be distinctive. 476 U.S. at 175.

The issue of whether the fair cross-section requirement

may be invoked to invalidate the use of peremptory chal-

lenges to exclude members of a distinctive group from the

petit jury is thus squarely raised in this case.

A. The Remedy For Discriminatory Use Of The Peremptory

Challenge Provided by Batson v. Kentucky Does Not Ade-

quately Protect The Interests Advanced By The Fair

Cross-Section Requirement.

Although Batson eliminates some abuses of the

peremptory challenge, its remedial effect is limited to

cases where defendant is himself a member of the

excluded group. Batson, 476 U.S. at 96. Other abuses of

the peremptory challenge could be ended by recognizing

that use of the challenge to eliminate the possibility of

representation of any distinctive group on the jury,

regardless of its relationship to the accused, is abhorrent

to the constitutional concept of a jury trial. That defend-

ant is not a member of the excluded group would not bar

this Sixth Amendment claim. Taylor v. Louisiana, 419

U.S. 522, 526 (1975).

There are many contexts in which a prosecutor might

attempt to exclude a distinctive group of which defendant

is not a member from jury service. Racial issues may be

“inextricably bound up with the conduct of the trial,”

Rosales-Lopez v. United S‘ates, 451 U.S. 182, 189 (1981),

so as to cause a prosecutor to prefer white jurors even

though the defendant may himself be white. An example

would be where a white civil rights activist is charged

with a crime as a consequence of his civil rights activities

or where his defense to a criminal charge is that he has

been framed by law enforcement officials who are his

antagonists. Cf, Ham v. South Carolina, 409 U.S. 524

(1973) (recognizing racial bias may infect such a trial

where defendant is black).

Batson also does not address the issue of exclusion of

female jurors from the petit jury where, as is the case in

most criminal prosecutions, the defendant is male. Trial

technique manuals counsel that as a general rule the male

juror is preferable to the female juror. J. Appelman, Prep-

aration and Trial 163-165 (1967); M. Belli, 3 Modern Trials

446 (2d ed. 1981); J. Doherty, Ready For Trial Your Honor

75 (1972); The Prosecutor’s Deskbook 373 (Healy and

Manak ed. 1971). Women are undesirable because they

are “more responsive tc emotional appeals, and, at least

from a male point of view, are more unpredictable and

subject to being deterred from properly voting for convic-

tion by other irrelevant factors” or are a “distracting

influence to male jurors—and to counsel.” The Pros-

ecutor’s Deskbook, supra, at 373. Litigants are especially

advised to avoid the female juror where the plaintiff,

complainant or witness is an attractive woman, on the

theory that “women are inordinately cruel to each other.”

Appelman, supra, at 164.

Discerning whether the accused, who may be of mixed

or uncertain parentage, is a member of the excluded

group, is also a potential dilemma in the application of

Batson which could ve minimized in the Sixth Amend-

ment context. See People v. Crowder, 161 Ill. App.3d 1009,

1046, 515 N.E.2d 783, 807 (1st Dist. 1987) (Pincham, J.,

dissenting); People v. Seals, 153 Ill. App.3d 417, 422, 505

N.E.2d 1107, 1111 (1st Dist. 1987).

In all of these instances it would be intolerable to per-

mit the prosecution to deny members of a cognizable

group the opportunity to serve as jurors, a result which

would unquestionably be a departure from the jury ideal,

merely due to the circumstance that the accused is not, or

cannot be precisely characterized as, a member of the

excluded group. Such abuse of the peremptory challenge

would be ended if it were recognized that exclusion of any

distinctive group, regardless of its relationship to the

accused, is abhorrent to the constitutional concept of a

jury trial.

B. The Sixth Amendment Guarantees The Accused The

Selection Of A Petit Jury In Accordance With Pro-

cedures Which Provide A Fair Possibility Of Obtaining A

Jury Representative Of The Community.

Selection of a petit jury from a representative cross

section of the community is an essential component of the

Sixth Amendment right to a jury trial, although no

requirement exists that petit juries actually mirror the

community and reflect the distinctive groups in the popu-

lation. Taylor, 419 U.S. at 538. Taylor held violative of the

fair cross-section rule a special exemption for women, a

distinctive group in the community, which eliminated

them from the pools for jury service unless they filed a

written declaration of a desire to serve. In Duren v.

Missouri, 439 U.S. 357 (1979), a statute allowing women

to exempt themselves from pools for jury service upon

request was held to offend these same principles.

Neither Taylor nor Duren assign independent signifi-

cance to the inclusion of distinctive groups on jury panels

separate from the effect their presence or absence on

those panels would have on the composition of the petit

jury. The systematic exclusion of a distinctive group from

jury panels offends the Sixth Amendment, not because

the group is excluded from the pool of jurors, but because

its exclusion from that pool operates to exclude its mem-

bers from the petit jury. Inclusion of a distinctive group

provides the opportunity for a jury drawn from that poul

to contain representative members of the group. See

McCray v. Abrams, 750 F.2d 1113, 1128-1129 (2nd Cir.

1984), vacated, 106 S.Ct. 3289 (1986); Booker v. Jabe, 775

F.2d 762, 770-771 (6th Cir. 1985), vacated, 106 S.Ct. 3289,

aff d on reconsideration, 801 F.2d 871 (6th Cir. 1986), cert.

denied, 107 S.Ct. 910 (1987).

The Sixth Amendment comprehends not merely that

distinctive groups in the community not be excluded from

the jury pool, but that the jury be selected in accordance

with procedures that provide a fair possibility for obtain-

ing a representative cross section of the community on the

petit jury. Williams v. Florida, 399 U.S. 78, 100 (1970);

Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946).

Selection of a jury from a pool drawn from a fair cross

section of the community is not an end in itself but con-

templates the possibility that the petit jury will be sim-

ilarly comprised. The fair cross-section requirement

would be illusory if any obstacle could be interposed to the

representation of a distinctive group on the petit jury as

long as the group was not excluded from the venire.

Any procedure, at any stage of jury selection, which

denies the opportunity for a distinctive group in the com-

munity to participate in the deliberative process must be

condemned as a violation of the Sixth Amendment. Trial

by jury of less than six persons is unconstitutional

because it decreases the opportunity for meaningful and

appropriate representation of a cross section of the com-

munity. Ballew v. Georgia, 435 U.S. 223, 237 (1978). A

prosecutor's exercise of the peremptory challenge to

exclude a distinctive group poses no less a threat to the

possibility of a cross-sectional jury. Allowing a prosecutor

to use the challenge to exclude members of a distinctive

group, although the group may have been fairly repre-

sented in the jury pool, would render the fair cross-sec-

tion guarantee a nullity.

C. Permitting A Distinctive Group To Be Excluded From

The Petit Jury By Use Of The Peremptory Challenge Is

Inconsistent With The Constitutional Concept Of A Jury

Trial.

That the Sixth Amendment is violated not only when

distinctive groups in the community are excluded from

the venire or jury pool, but also when those groups are

denied the opportunity to participate in the deliberation

process as petit jurors, is evident from examination of the

same consideration which persuaded this Court in Taylor

that the constitutional concept of a jury trial comprehends

a jury drawn from a fair cross section of the community.

Whether the fair cross-section requirement prevents

exclusion of a distinctive group from the petit jury as well

as from the pool from which that jury is drawn is resolved

by examining the function the fair cross-section require-

ment performs and its relation to the purposes of the jury

trial. If the requirement performs a function essential to

the purpose of the right to trial by jury, it is an indispensa-

ble component of the Sixth Amendment. Williams, 399

U.S. at 99, 100. Extension of the requirement that a fair

possibility exist that the petit jury will reflect a cross

section of the community is not only compatible with, but

is mandated by, the constitutional concept of a jury trial.

The right to trial by jury is guaranteed to the criminal

accused as a shield against government oppression. Dwn-

can v. Louisiana, 391 U.S. 145, 156 (1968). Its function is

to interpose between the accused and the accuser the

common-sense judgment of the community as a hedge

against the overzealous and mistaken prosecutor and in

preference to the professional or perhaps overconditioned

or biased response of a judge. Williams, 399 U.S. at 100;

Taylor, 419 U.S. at 530. The broad representative

character of the jury provides an assurance of diffused

impartiality. Thiel, 328 U.S. at 277 (Frankfurter, J., dis-

senting).

If this prophylactic purpose is not provided if the jury

pool is made up of only special segments of the populace or

if large, distinctive groups are excluded from the pool,

Taylor, 419 U.S. at 530, neither can it be served if a

distinctive group is excluded from the petit jury by

peremptory challenge. In both instances the quality of

community judgment represented by the jury is diluted.

Taylor, 419 U.S. at 535. The counterbalancing of various

biases, which is critical to the accurate application of the

common sense of the community to the facts of any given

ease, suffers. Ballew, 435 U.S. at 234. As this Court

recognizes:

When any large and identifiable segment of the com-

munity is excluded from jury service, the effect is to

remove from the jury room qualities of human nature

and varieties of human experience, the range of

which is unknown and perhaps unknowable. It is not

necessary to assume that the excluded group will

consistently vote as a class in order to conclude, as we

do, that its exclusion deprives the jury of a perspec-

tive on human events that may have unsuspected

importance in any case that may be presented.

Peters v. Kiff, 407 U.S. 493, 503-504 (1972).

Full community participation in the administration of

criminal law is also critical to public confidence in the

fairness of the criminal justice system. Taylor, 419 U.S. at

530. To perform its high function in the best way, justice

must satisfy the appearance of justice. Re Murchison, 349

U.S. 133, 136 (1954). A jury selection practice which

creates the appearance of bias in the decision of an individ-

ual case casts doubt on the integrity of the whole judicial

process. Peters, 407 U.S. at 502, 503. Exclusion from jury

service of a large group of individuals, not on the basis of

their inability to serve as jurors, but on the basis of some

immutable characteristic such as race, undeniably gives

rise to an appearance of bias. Lockhart, 476 U.S. at 176.

Where a prosecutor employs peremptory challenges to

engineer the wholesale exclusion of a distinctive group

from a petit jury, public confidence in the integrity of the

criminal justice system is shaken and the appearance of

unfairness is created. A question will inevitably arise

regarding the quality of justice being sought when mem-

bers of that group are deemed unsuitable for service no

matter what their individual characteristics may be.

Exclusion from jury service of otherwise qualified

groups is also at war with our basic concepts of a demo-

cratic society and a representative government. Smith v.

Texas, 311 U.S. 128, 130 (1940). Our notions of what a

proper jury is have developed in harmony with these

concepts. Glasser v. United States, 315 U.S. 60, 85 (1941).

It is part of the established tradition in the use of juries as

instruments of public justice that the jury be a body truly

representative of the community, Sm’th, 311 U.S. at 130,

and not the organ of any special group or class. Glasser,

315 U.S. at 60. The exclusion of elements of the com-

munity from participation contravenes the very idea of a

jury composed of the peers or equals of the person whose

rights it is selected or summoned to determine. Ballew,

435 ‘U.S. at 237. To disregard the principle that jury

competence is an individual rather than group or class

matter opens the door to class distinctions and discrimi-

nations which are abhorrent to the democratic ideal of

trial by jury. Thiel, 328 U.S. at 220.

D. Existing Standards May Be Employed To Prove A Viola-

tion Of The Fair Cross-Section Requirement.

Duren v. Missouri, 439 U.S. 357, 364 (1979) provides

standards which may be adapted to determine whether a

petit jury has been selected in violation of the fair cross-

section requirement of the Sixth Amendment. The

defendant must initially establish a prima facie violation

of the requirement. He succeeds if he can demonstrate

that 1) the group alleged to be excluded is a distinctive

group in the community; 2) representation of this group

on the petit jury is not fair and reasonable in relation to

the number of such persons in the community; and 3) the

underrepresentation is attributable to the prosecutor's

exercise of his peremptory challenges.

What is a distinctive group within the meaning of the

fair cross-section requirement has never been precisely

defined other than that the concept of distinctiveness

must be linked to the purposes of the requirement and

does not include groups defined solely in terms of shared

attitudes which either prevent or substantially impair

members of the group from performing the duties of a

juror. Lockhart, 476 U.S. at 174. Because communities

differ at different times and places, the concept of what

comprises a fair cross section is not immutable and varies

according to time or place. Taylor, 419 U.S. at 537.

The second prong of the prima facie case may be estab-

lished by a demonstration that a cognizable group is

underrepresented in proportion to its position in the com-

munity as documented by the U.S. census. Duren, 439

U.S. at 364.

The third prong requires that the underrepresentation

be attributable to specific action of the prosecutor. No

demonstration of systematic exclusion of the dimension

found in Duren need or should be required. The trial court

during the selection process can observe if it is the result

of chance circumstances inherent in any random selection

process, the excusal of a juror for cause, or a party's

exercise of peremptory challenges, which interferes with

the possibility that the jury will reflect a fair cross section

of the community.

To rebut this prima facie case, the State must justify its

infringement on the possibility of a representative jury by

demonstrating that a significant state interest is man-

ifestly and primarily advanced by its exercise of the chal-

lenges which resulted in the disproportionate exclusion of

a distinctive group. Dwren, 439 U.S. at 367-368. This

burden would at least require the prosecution to provide a

case-related neutral explanation for its exercise of its

challenges. Batson, 476 U.S. at 98. The prosecutor should

be required to point to some aspect of the challenged

juror’s background or beliefs which provide a reasonable,

objective basis to question the juror’s impartiality. For

example, an adequate state interest might exist where a

juror believes a relative has been treated unfairly by the

police or prosecution, but insists he could put that belief

aside and judge the case to be tried on its own merits.

While the juror would not be subject to a challenge for

cause, the prosecution’s interest in securing jurors in

whose fairness it has confidence would provide justifica-

on for exclusion of the juror, although the result would

be inderrepresentation of a cognizable group on the jury.

E. No Significant State Interest Was Served By The Total

Exclusion Of Black Jurors From Petitioner’s Jury As A

Result Of The Prosecution’s Use Of Its Peremptory Chal-

lenges.

The facts of this case provide a vivid demonstration of

the extreme abuse of the peremptory challenge possible

should the Sixth Amendment place no limitation on a

prosecutor's interference with the possibility that the jury

will reflect a cross section of the community. Thirty-six

jurors were examined by the trial court in this case from

which twelve were selected to try the issue of Teague’s

guilt or innocence. Of those thirty-six, four were excused

for cause. (S.R. 27, 116, 119, 147) The racial identity of the

jurors excused for cause is not revealed by the record. Of

the remaining thirty-two jurors, eleven, or approximately

one-third, are biack. The prosecution exercised each of

the ten peremptory challenges allotted it by statute to

excuse a black juror. The defense also exercised all ten of

its challenges, one against a black woman who was mar-

ried to a police officer. The result was the selection of an all

white jury. (J.A. 3-4)

These facts establish a prima facie violation of the Sixth

Amendment. The black persons excluded from the petit

jury are a group which is recognized as being distinctive

within the meaning of the fair cross-section rule. Lock-

hart, 476 U.S. at 175. Since Teague was tried by a jury

from which all potential black jurors had been exciuded,

black jurors were not represented on the jury fairly and

reasonably in relation to the number of such persons in

the community from which the jury was drawn. Census

figures indicate 25.62% of the population of Cook County,

the community from which Teague’s jury was drawn, was

comprised of black persons in 1980. U.S. Bureau of the

Census, County and City Data Book (1983). Approx-

imately one-third of the venire from which the petit jury

was selected was black. The complete exclusion of black

persons from the petit jury was disproportionate to both

the percentage of black persons in the community and on

the venire. The peremptory challenge was employed to

methodically eliminate each and every black person, save

one, from the jury. The underrepresentation of black

jurors on the petit jury is attributable to the State’s exer-

cise of its peremptory challenges.

No significant state interest was advanced to justify the

exclusion of black jurors. Duren, 439 U.S. at 368. The

explanation offered by the prosecutor who selected Tea-

gue's jury was that challenges were exercised to achieve a

balance of men, women and age groups. (J.A. 3) An exam-

ination of the record shows that the explanation offered by

the prosecutor for his exercise of his challenges was disin-

genuous. It was not essential to his stated objective of a

balance that the jury be unrepresentative of black citizen-

ry. A chart outlining the sequence of selection of the

jurors from among the thirty-two jurors who withstood

challenges for cause follows:!

State Defense Seated

Challenge Acceptance Challenge Acceptance

(1) black male

(2) black female

(3) white male X

(4) white female X .

(5) white male X X

(6) black female

(7) black female X

is) X

black female

This chart is adapted from a chart contained in the unissued pane!

opinion, found in Appendix A, p. 26 of the petition for writ of cer.

tioran.

State Defense Seated

Challenge Acceptance Ckallenge Acceptance

(9) X white male X

(10) X white male X

(11) white female X

(12) white male

(13) X black female

(14) black female

(15) white male xX X

(16) white male X

(17) black female

(48) white male xX

(19) white female X xX

(20) black female

(21) white female X xX

(22) xX white male xX

(23) X white female X

(24) white male xX X

(25) white male X

(26) white male X X

(27) white male X

(28) X black female

(29) black female

(30) white female X X

(31) white female

(32° X white female X

The first panel tendered to the State consisted of two

men and two women.? Althouyh this panel was “balanced

the State prompt!y challenged a male and a female juror,

* The jury was selected in three panels of four jurors each. After

the first panel of four jurors was examined by the court, it was

tendered to the prosecution for exercise of its peremptory challenges

Other jurors were substituted for challenged jurors. When the State

was satisfied with a pane! of four jurors, the pane! was tendered to the

defense for any challenge. Any change in the composition of the panel,

as a consequence of defense challenges resulted in the pane! being

retendered to the State for challenge or acceptance. This process

continued until both parties agreed to the composition of the pane!

both of whom were black. The State excused three black

females during selection of that nanel, none of whom it

accepted to further achievement of the “balance” it

desired. As to the second panel, whose final composition

was one male and three females, the State excused two

black females, at the same time finding acceptable three

white males and three white females. Prior to exercise of

any defense challenges against the final panel, the State

accepted a panel of four men, which had it been accepted

by the defense would have resulted in a jury composed of

nine males and three females, which hardly qualifies as a

balance of men and women. During selection of that panel,

the State excused only two females, both of whom were

black. The final two white females on the jury were

selected after the State had exhausted its peremptory

challenges; their appearance was not the result of the

State’s design. The suggestion that it was the prosecutor's

quest for a balance of men and women on the jury which

resulted in the underrepresentation of black jurors has no

basis in fact.

The prosecutor's objective of seeking a balance of age

groups also is unsupported. Although the record does not

reflect the ages of all the jurors, four of the persons who

Sat on the petit jury had grown children (S.R. 67, 131.

138, 159), two had both school-age and grown children

(S.R. 54-55, 71), one had he!d the same employment for

thirty-seven years (S.R. 129), and another was on dis-

ability and living with his retired sister. (S.R. 142-144)

Two had school-age children and one was a 22 vear old

student. (S.R. 99, 120, 164) Three of the black jurors

excused by the State were students and one was 19. (S.R.

8Y, 92, 111, 123) The remainder had school-age or grown

children or substantial work experience. (S.R. 31. 35. a2,

73, 153, 156) At the time the State ex used Ms. Turner

and Ms. Moore, black women who were students, the

remaining panel was composed of thre. white men, ali of

whom had adult children. (S.R. 55, 67, 68, 71, 92, 96) The

only young person who sat on the jury, a 22-year old white

female college student, was selected after the State

exhausted its peremptory challenges. (S.R. 164) The

objective of a balance of age groups was not the cause of

the underrepresentation of black jurors because the State

never achieved its purported objective, the jury being

predominately composed of older persons, and young

black jurors were challenged when no younger age groups

were represented on the jury. The expressed objective of

balance is a belatedly contrived excuse to mask the State's

misconduct.

This Court has cautioned that we must be ever vigilant

in resisting any tendencies, no matter how slight, toward

selecting jurors by any method which would prevent the

opportunity for trial by a representative jury. Glasser, 315

U.S. at 86. The injury that is prevented is not limited to

the defendant, but extends to the jury system, the law as

an institution, the community at large, and the demo-

cratic ideal reflected in the processes of our courts. Bal-

lard v. United States, 329 U.S. 187, 195 (1946).

Disallowance of the prosecution's use of the peremptory

challenge to eliminate minority participation from a petit

jury, as was accomplished at the trial of this case, is

crucial to preservation of the constitutional concept of

jury trial. The accused and the community both deserve a

criminal justice system in which they have full confidence.

Il. RETROACTIVE APPLICATION OF THE RULE OF

BATSON V. KENTUCKY SHOULD BE EXTENDED AT

A MINIMUM TO THOSE DEFENDANTS WHOSE

CONVICTIONS WERE NOT FINAL WHEN CER-

TIORARI WAS DENIED IN MCCRAY V. NEW YORK.

In Griffith v. Kentucky, 479 U.S. —_, 107 S.Ct. 708

1987), the rule of Batson v. Kentucky, 476 U.S. 79 ( 286)

a ee

was held to apply retroactively to all defendants whose

convictions were not final when the rule wus announced

Griffith followed the rationale of United States v. Johnson,

457 U.S. 537 (1982) and Shea v. Louisiana, 470 U.S. 51

(1985) that applying newly declared constitutional rules

to cases pending on direct review is consonant with basic

norms of constitutional adjudication and furthers the goai

of treating similarly situated defendants similarly, but

abandoned the “clear break” exception enunciated in

Johnson, 457 U.S. at 549, as inconsistent with the princi-

ples which persuaded the Court to extend the benefits of

new rules to defendants whose convictions are not final.

The reasoning of Griffith has its origin in th

opinions of Justice Harlan-in Desist y. United S totes, 904

U.S. 244, 256 (1969) (Harlan J., dissenting) and Mackey v

U nited States, 401 U.S. 667, 675 (1971) (Harlan, J. con-

curring and dissenting), in which he proposed a view of

retroactivity which distinguished between cases pending

on direct and collateral review. This Court has not yet

adopted Justice Harlan’s view with respect to cases pend-

ing on collateral review.* If that view or a modified version

is adopted here, the benefits of Batson should be extended

° nn oa to all defendants whose convictions were

ot final when certiorari w led j . New

ion oe Ge on aa denied in McCray v. Neu

——

In Allen v. Hardy, 478 U.S. . 106 S.Ct. 2878 (1986). Batson

was held non-retroactive to final convictions, but on the ground that

application of the three-pronged analysis of Link/letter v. Walker, 38]

U.S. 618 (1965) supported such a result. :

4( € s > . "

a “y May 31, 1983, certiorari was denied in McCray v. New York

~ ( ; ’ )

B1 U.S. 961 (1983). Certiorari was denied in Teague v. Illinois it

U.S. 867 (1983) on October 3. 193 |

A. Because The Rule of Swain v. Alabama Was Not The

Dominant Constitutional Standard When Certiorari

Was Denied In McCray v. New York, Batson Should Be

Retroactively Applied To All Cases Then Pending On

Direct Review.

Justice Harlan believed that claims contained in habeas

corpus petitions should be judged according to constitu-

tional standards existing at the time the conviction

became final. In his view, the choice of what law should be

applied should be made by focusing on the purpose of the

writ, Mackey, 401 U.S. at 682, which is primarily deter-

rence, i.e., its threat serves as an incentive for trial and

appellate courts to conduct their proceedings in a mianner

consistent with established constitutional standards.

Desist, 394 U.S. at 262-263. To perform this function of

forcing courts to toe the constitutional mark, habeas cor-

pus petitions need only be judged according to the law

prevailing at the time a conviction becomes final. Mackey,

401 U.S. at 687.

At the time Teague’s conviction became final, the state

of the law respecting the limitations on the prosecution’

use of its peremptory challenges to exclude members of a

racial group was not in repose. The precedential effect of

Swain v. Alabama, 380 U.S. 202 (1965) had been

destroyed by the denial of certiorari in McCray v New

York, 461 U.S. 961 (1983). A majority of the Justices

(opinion of Stevens, J., joined by Blackmun and Powell,

JJ., respecting the denial of certiorari, and Marshall, J.,

joined by Brennan, J., dissenting) recognized that the

issue of whether the Constitution prohibits use of the

peremptory challenge to exclude members of a particular

group from the jury was an important one which

ultimately would be resolved by the Court, but disagreed

as to timing. Justice Stevens concluded the issue would be

better addressed by first allowing the states to serve as

laboratories in which the issue received further study.

Reexamination of Swain was intentionally postponed, but

the effect was to signal lower courts that Swain could be

rethought and no longer controlled their resolution of the

issue. Since they were cast in the role of laboratories

where the law was open to experimentation, Swain was

not binding authority and lower courts could not deter-

mine after McC ray if they were “toeing the constitutional

mark.” The resulting inequity® can only be corrected by

extension of the benefits of Batson to all those thus

affected.®

Justice Harlan recognized that it would often be diffi-

cult for a habeas court to define the constitutional stan-

dards prevailing at the time a conviction became final. The

court would be “required to chart out the proper implica-

tions of the governing precedents” rather than simply

applying new rules to those cases pending at the time the

decision is announced. He believed that simplicity should

not be purchased at the cost of compromising the principle

that a habeas petitioner is entitled to have his conviction

judged according to constitutional standards dominant at

the time it became final. Desist, 394 U.S. at 268: Mackey,

401 U.S. at 695.

>In his petition for writ of certiorari on direct appeal, Petitioner

counseled against delay in resolution of the problem of misuse of the

peremptory challenge, noting most state courts were reluctant to

reexamine Swain. See Gilliard v. Mississippi, 464 U.S. 867, 871 n.3

1983) (Marshall, J., dissenting).

" This class would consist of a!] defendants whose convictions were

not final when certioran was denied in Me( ray on Mav 31, 1288 but

became final prior to the announcement of the Batson rule on April

1). 1986 |

The rule of Swain cannot be considered the dominant

constitutional standard at the time Petitioner's conviction

became final in light of the impact of McCray. To para-

phrase Justice Harlan, “it is hard to believe that any

lawyer worthy of the name could, after reading /McCray/

rely with confidence on the continuing vitality of the

[Swain] rule. Nor is it by any means ciear . . . that it

would have been improper for a lower court to have

declined to follow [Swain] in light of /McCray.]” Desist,

394 U.S. at 265. Because the dominance of Swain ended

when certiorari was denied in McCray, the constitu-

tionality of Teague’s conviction should not be judged

according to the standard of Swain.

A central concern of Justice Harlan was that rules of

retroactivity not unfairly discriminate among similarly

situated defendants. He recognized that drawing a dis-

tinction between direct and collateral attacks on convic-

tions would result in some discrimination. His willingness

to accept this result, in the face of the competing consider-

ations of the need for finality and allocation of limited

resources, was premised on the assumption that it could

be concluded with assurance that a conviction was per-

fectly free from error when it became final. Mackey, 401

U.S. at 689-691.

No such assurance exists here. The inequity whic.

defendants suffer because their jurisdiction did not

provide a remedy for the prosecution’ discriminator

jury selection practices cannot be forgiven in the interests

of finality or conservation of resources. McC ray undoubt-

edly signaled that Swain should be reexamined, yet left it

entirely to the discretion of lower courts whether to follow

precedent that was discredited, although not expressly

overruled. Correction of this aberration can be achieved

by extension of the benefits of Batson to ail defendants

whose cases were pending on direct review when the

dominance of Swain ended.

B. Extension Of The Benefits Of The Rule Of Batson To All

Cases Pending On Direct Review When Certiorari Was

Denied In McCray Would Not Be Inconsistent With The

Result Reached In Allen v. Hardy.

Consistency with the result reached in Allen v. Hardy,

478 U.S. __., 106 S.Ct. 2878 (1986) does not demand that

this Court deny the benefits of Batson to defendants

whose convictions became final only after denial of cer-

tiorari in McCray. First, Allen’s conviction was final and

he was seeking collateral relief from his conviction when

‘he McCray denial was announced, U.S. ex rel. Allen v.

‘tardy, 556 F.Supp. 464 (N.D.IIl. 1983). The Allen Court

therefore had no cause to question the vitality of Swain

while Allen was pending on direct appeal.

Second, application of the three-pronged analysis of

Linkletter v. Walker, 381 U.S. 618 (1965) to that class of

cases which became final after McCray but prior to the

Batson opinion being delivered would have resulted in the

conclusion that the interests considered were weighted in

favor of retroactive application of Batson.

Foremost among the factors weighed in deciding to

whom the benefits of a new rule extend is the purpose of

the rule at issue. If the purpose is designed to enhance the

accuracy of the trial, retroactivity is favored. Controlling

significance is given to the extent of reliance on the old

rule and the impact retroactive application of the new rule

would have © the criminal justice system only where the

purpose of the rule does not clearly favor retroactivity or

prospectivity. Brown v. Louisiana, 447 U.S. 323. 328

(1980); Solem v. Stumes, 465 U.S. 638. 643 (1984),

That the rule of Batson bears on the truth-finding func-

tion of a criminal trial is beyond dispute. Allen, 106 S.Ct.

at 2880; McClesky v. Kemp, 481 U.S. —__, 107S.Ct. 1756,

1775 (1987). The rule is not designed to be a mere deter-

rent nor is its role purely prophylactic. Racial discrimina-

tion in the selection of a jury is a stimulant to race

prejudice which is an impediment to securing equal jus-

tice. It denies the accused the protection against the

arbitrary exercise of power by a prosecutor or a judge

that a trial by jury is intended to secure. Batson, 476 U.S.

at 86-88. Being a practice that undermines the jury’s

ability to perform its function, it poses a significant threat

to the truth-finding process. Brown, 447 U.S. at 334.

Safeguards do not exist which significantly minimize

the likelihood of past injustices caused by discriminatory

jury selection. Although this Court has noted the exis-

tence of procedures, such as voir dire and the court’s

instructions, which could protect these same interests,

Allen, 106 S.Ct. at 2881 n.2, the protection these mea-

sures provide is largely illusory. A defendant is unable to

question jurors specifically as to racial bias unless he can

demonstrate a significant likelihood exists that racial bias

will influence a jury. Ristaino v. Ross, 424 U.S. 589, 596

(1976). A prosecutor inclined to discriminate in the selec-

tion of a jury may not limit his misconduct to those cases in

which such a demonstration can be made. While a court

may direct jurors in concluding irstructions not to be

influenced by any prejudices they may harbor, such an

instruction does not insure that only jurors free from

prejudice are selected for jury duty, or that only those sit

who are able to arrive at an independent judgment apart

from any prejudice they may have. The efficacy of such an

instruction is also questionable where those same jurors

have witnessed the apparently court-sanctioned specta-

cle of a jury selected in a race-conscious manner

While no viable remedy existed to prevent miscarriages

of justice as a result of discrimination in the selection of

jurors prior to Batson, retroactive extension of the bene-

fits of Batson would not result in windfall benefits for

defendants who have suffered no constitutional depriva-

tion. Michigan v. Payne, 412 U.S. 47, 53 (1973). Only

those defendants able to demonstrate that the pros-

ecutor’s use of the peremptory challenge was racially

motivated, i.e., who have suffered the injury Batson is

designed to eliminate, will reap the benefit of retrial.

Retroactive application of Batson would also result in

the award of relief which would remedy the injury suf-

fered. Unlike other contexts where the interest sought to

be protected has been damaged and cannot be corrected,

Linkletter, 381 U.S. at 637, the injury which occurs when

an accused is tried by a jury from which members of his

race have been excluded is not irreparable. The con-

fidence of the public and the accused that justice has been

done can be restored by trial by a jury selected in a

nondiscriminatory manner.

The factors of reliance on the old rule and the impact of

retroactive application of Batson on the administration of

justice do not weigh heavily against retroactivity where

the class of potential litigants is limited to cases which

were not final when certiorari was denied in McCray.?

Since trial and appellate courts and prosecutors were put

on notice by McCray that the rule of Swain was certainly

going to be reexamined by the Supreme Court at some

date in the not distant future, a prosecutor's continued

reliance on the heavy evidentiary burden of Swain was

risky. That Swain was under continued attack and some

‘ There is no indication that the limited retroactivity given Batson

in Grifnth has had any adverse effect

courts used their own state constitutions or the Sixth

Amendment to provide a remedy for discriminatory use of

the peremptory challenge notwithstanding Swain, dimin-

ishes the persuasiveness of the prosecution's reliance on

Swain. Roberts v. Russell, 392 U.S. 293, 295 (1968).

Swain left unquestioned the principle established in

Strauder v. West Virginia, 100 U.S. 303 (1880), that the

state denies a black defendant equal protection of the laws

when it places him on trial before a jury from which

members of his race have been purposefully excluded.

Batson, 476 U.S. at 89. A prosecutor could not have

justifiably relied on Swain as sanctioning discriminatory

jury selection practices. Batson, 476 U.S. at 101 (White,

J., concurring). Even if a prosecutor believed the evidenti-

ary burden of Swain controlled, a defense of his exercise

of his challenges remained a possibility which had to be

anticipated should a defendant question a prosecutor's

motives and undertake to carry his burden of proof. In

short, no prosecutor could or should have believed that

race was a proper basis to exercise a peremptory chal-

lenge or that his conduct was immune from scrutiny under

Swain.

Nor is the impact on the administration of justice great

due to the limited number of cases involved. Retrial will

not be required in every instance in which a defendant

claims he is entitled to the benefits of Batson, only in

those instances-in which he can persuade the trial court

that discrimination has occurred. Further winnowing will

occur with application of various state or federal pro-

cedural rules which limit the number of successful liti-

gants. Hankerson v. North Carolina, 432 U.S. 233, 244

n.8 (1977).

C. No Reasoned Basis Exists To Extend The Benefits Of The

Baison Rule To Litigants In Cases Pending On Direct

Review And To Deny Relief To Equally Deserving Liti-

gants Who Are Seeking Collateral Relief From Their

Convictions.

Justice Harlan was convinced that new constitutional

rules must at a minimum be applied to cases pending on

direct review when the rule is announced. To hold other-

wise in his view would constitute an indefensible depar-

ture from the model of judicial review, allowing the Court

to simply fish one case from the stream of appellate

review, use it as a vehicle for pronouncing new constitu-

tional standards, and then permit a stream of similar

cases to flow by unaffected by that rule. Mackey, 401 U.S.

at 679. By picking and choosing whom among similarly

situated defendants should receive the benefits of a new

rule, the Court acts as a legislature or court of revision.

not a court of law. Desist, 394 U.S. at 259; Mackey, 401

U.S. at 677-679.

The convicion that retroactivity is an essential

attribute of judicial decision making and that disparate

treatment of similarly situated defendants is intolerable

should not dissipate merely because a defendant is pursu-

ing an avenue of relief beyond direct appeal. This Court

was persuaded to reject the “clear break” exception to the

rule of retroactivity due to recognition that the “mere

fortuities of the judicial process” should not be the basis

for distinguishing whom among equally deserving liti-

gants receive the benefits of a new rule. Griffith. 107S.Ct.

at 716. Neither should the direct collateral distinction be

maintained where It is the “vagarnes of the appellate pro-

cess which unavoidably create inequities in availability of

relief. Joi mSor. 15; 1) § at 7? ons White. J dissent-

ing j

Considerations of finality do not justify the distinction

between direct and collateral review. A new trial is not a

significantly less burdensome remedy when it is imposed

on direct review than when it is ordered on habeas. Shea,

470 U.S. at 64 n.1 (White, J., dissenting). The line drawn

between direct and collateral review is purely arbitrary.

Johnson, 457 U.S. at 567 (White, J., dissenting). It allows

for no exception to the general rule of nonretroactivity for

state collateral proceedings where the state court should

itself determine whether its interests in finality of its

judgments supply justification to deny extension of the

benefits of a new rule to a defendant seeking state post-

conviction relief.

Justice Harlan found the nterests of finality significant

only because he found disquieting the rule of Fay v. Nota,

372 U.S. 391 (1963) which “opened the door for large

numbers of prisoners to relitigate their convictions each

time a ‘new’ constitutional rule was announced” despite

the fact that the new rule had not been suggested in the

original proceedings. Desist, 394 U.S. at 261. Finality

became paramount only as it provided a means to contain

the effect of decisions Justice Harlan believed “constitute

an unsound extension of the historic scope of the writ and

an unfortunate display of insensitivity to the principles of

federalism which underlie the American legal system.”

Mackey, 401 U.S. at 685. It was the availability of relief on

habeas review to prisoners raising new claims never

addressed by state courts which Justice Harlan believed

frustrated the state's interests in finality.

Developments since Fay v. Noia, however, have elimi-

nated the specter of prisoners continually relitigating the

constitutionality of their convictions each time a new rule

is announced. Extension of the benefits of a new rule to

habeas corpus petitioners does not entitle them to those

»)

benefits if the interests of comity and finality would other-

wise be disserved. Those interests are addressed by the

rule of Wainwright v. Sykes, 433 U.S. 72 (1977), that a

state procedural default bars federal habeas corpus

review absent a showing of cause for noncompliance with

a state procedural rule and a showing of actual prejudice.

See Engle v. Issac, 456 U.S. 107, 184 n.43 | 1982) (recog-

nizing that a distinction exists between the retroactive

availability of a constitutional decision and the right to

claim that availability after a procedura: default).

The cause and prejudice test of Wain wright® addresses

the concern that interests of comity and finality are not

adequately respected when prisoners are awarded relief

from their convictiens on the basis of constitutional rules

announced after t!.eir convictions become final. Con-

struction of an artificial dividing line between direct and

collateral review is unnecessary to promote those same

interests and should be abandoned.

Ill. SWAIN V. ALABAMA PERMITS A PROSECUTOR'S

VOLUNTEERED EXPLANATION FOR HIS EXER.

CISE OF HIS PEREMPTORY CHALLENGES TO BE

EXAMINED TO DETERMINE WHETHER THE

EXPLANATION IS LEGITIMATE OR A MERE PRE-

TEXT FOR RACIAL DISCRIMINATION.

If Batson v. Kentucky, 476 U.S. 79 (1986) has no retro-

active application to cases pending on collateral review,

Teague is entitled to relief from his conviction nonetheless

* Additional limitations on t} > availability of collateral relief are

found in Stone v. Powell, 428 U.s. 465 (1976), the exhaustion of state

remedies requirement, Rose v. Lundy, 455 U.S. 509 (1982), and the

presumption of correctness of state court findings, Sumner v. Mata.

449 U.S. 539 (1981), all of which promote respect for the finality of

State court judgments.

because the record demonstrates an equal protection vio-

lation pursuant to Swain v. Alabama, 380 U.S. 202

(1965). Although he was not required to do so, the trial

prosecutor in this case volunteered his reasons for the

exercise of his peremptory challenges. Swain permits

those reasons to be reviewed to dete.mine whether the

purpose of the peremptory challenge is being perverted.

Weathersby v. Morris, 708 F.2d 1493, 1496 (9th Cir. 1983),

cert. denied, 464 U.S. 1046 (1984); Garrett v. Morris, 815

F.2d 509, 511, 513 (8th Cir. 1987), cert. denied, 108 S.Ct.

233 (1987). The explanation offered by the prosecutor for

his decision to exercise all ten of his challenges to exclude

only black venirepersons from the petit jury was a pretext

for racial discrimination. This equal protection violation

should be recognized as affording a basis to award Teague

relief from his conviction.

A. An Equal Protection Violation Can Be Established Con-

sistent With Swain Other Than By Proof That The Pros-

ecution Consistently And Continuously Excluded A

Racial Group From Petit Juries.

The court of appeals interpreted Swain to require that

a defendant meet his burden of demonstrating the pros-

ecution exercised its peremptory challenges in violation

of the Equal Protection Clause by proof that black jurors

are systematically excluded from petit juries in case after

case. The court rejected the notion that a demonstration

that the prosecution exercised its peremptories on the

basis of race in a single case could establish an equal

protection claim. Teague v. Lane, 820 F.2d 832, 834 n. 6

(1987). Swain does not contain the limitations ascribed to

it by the court of appe:‘s.

Swain did not questior. the soundness of the principle

enunciated ir, Strauder v. West Virginia, 100 U.S. 303

(1880) that a state’s purposeful or deliberate denial to

blacks on account of race of participation as jurors in the

administration of justice violates the Equal Protection

Clause. Swain, 380 U.S. at 205. After reviewing the

purpose of the perempvory challenge system and the func-

tion it serves, the court did conclude a presumption

should exist in any given case that the prosecutor uses his

challenges to obtain a fair and impartial jury to try the

ease before the court. This presumption could not be

overcome and the prosecutor required to justify his chal-

lenges merely by allegations that in a single case the

prosecutor removed all blacks from the jury or that they

were removed because they were black. Swain, 380 U.S.

at 222. The presumption might be overcome by proof that

the prosecutor in a county, in case after case, what-

ever the circumstances, whatever the crime and

whoever the defendant or victim may be, is responsi-

ble for the removal of Negroes who have been

selected as qualified jurors by the jury commis-

sioners and who have survived challenges for cause,

with the result that no Negroes serve on petit juries,

but evidence that no black person served on a petit jury

over an extended period of time would not satisfy this

burden. Swain, 380 U.S. at 223. Absent from such proof

would be a showing of the prosecution's responsibility for

the exclusion. Swain, 380 U.S. at 227.

Swain contains no rejection of the possibility that a

defendant might demonstrate an equal protection viola-

tion by a prosecutor's use of peremptory challenges in a

single case. Swain merely clothed the prosecution's use of —

its challenges in a presumption of correctness, insulating

them from inquiry except where that presumption was

overcome, and rejected the argument that the presump-

tion could be overcome solely by an allegation that the

prosecutor peremptorily removed all the black jurors or

that he did so on account of race. That it was not the intent

of Swain to require proof of a consistent exclusion of

blacks over a period of time as the only means to overcome

the presumption is evident from the observation of the

author of Swain that it would not have been inconsistent

with Swain for the trial judge to invalidate peremptory

challenges of black jurors if the prosecutor, in response to

an objection to his strikes, stated that he struck blacks

because he believed they were not qualified to serve as

jurors. Batson, 476 U.S. at 101 n.* (White, J., con-

curring). Batson attributed the requirement that the pre-

sumption of correctness be overcome by proof of repeated

striking of blacks over a number of cases to lower court

interpretation of Swain. 476 U.S. at 92. Nothing in Swain

suggests that proof of repeated strikings is the sole or

exclusive method of making the requisite showing of per-

version of the peremptory challenge.

When a prosecutor volunteers his explanations for his

peremptory challenges, the considerations which per-

suaded the Court to presume that a prosecutor acts for

valid reasons in exercising his challenges no longer

obtain. The peremptory nature of the challenge was

thought worthy of preservation because it enabled the

parties to select jurors with the ability to decide the case

on the basis of the evidence before them. Swain, 380 U.S.

at 219. Ifa prosecutor's motivation for each challenge was

subject to scrutiny, a great many uses of the challenge

would be banned. Swain, 380 U.S. at 222. The Court was

not prepared to make this sacrifice.

If the prosecution reveals its motivation for its chal-

lenges without compulsion, no deleterious limitation has

been placed on the exercise of its challenges. The prosecu-

tion remains free to exercise its challenges as it sees fit on

the ground of any real or perceived bias detected in a

juror. It is unnecessary to presume that the prosecution

exerc'ses its challenges for acceptable reasons to allow it

to act on the basis of real or imagined partiality which is

incapable of articulation or not easily articulated. The

prosecution has determined that its motivation is articula-

ble and it has not been intimidated by the prospect of

being forced to state its reasons to be unduly conservative

in its exercise of its challenges.

The principle that the Equal Protection Clause is

offended when black persons are excluded from participa-

tion as jurors on account of race is unassailable. No reason

exists to decline to examine the reasonableness and sin-

cerity of a prosecutor's explanation for the exercise of

peremptory challenges where it is volunteered. The court

should satisfy itself that the prosecutor’s challenges are

based on constitutionally permissible trial-related consid-

erations and that the proffered reasons are genuine and

not merely a pretext for discrimination.

B. The Explanation Volunteered By The Prosecutor For His

Peremptory Challenge Of Ten Black Jurors Is A Pretext

And Demonstrates That The Prosecutor's Actual Motiva-

t'on Was Racial Discrimination.

An examination of the reason volunteered by the pros-

ecutor for his exercise of his peremptory challenges in

Teague’s case reveals that the proffered explanation was a

pretext, intended to disguise his actual moti vation which

was to obtain a jury as nearly composed sole'y of white

jurors as the prosecutor's manipulative use of his chal-

lenges would permit. As demonstrated in Arzument I,

supra, the record affirmatively refutes the contention

that the stated objective that the jury reflect a balance of

men, women and age groups resulted in the exclusion of

black jurors.

Additional support is found for this conclusion in the

prosecutor's decision not to strike white jurors who dif-

fered in no significant way from the excluded black jurors.

Garrett, 815 F.2d at 514.9 Both Mrs. Munoz and Ms. Jones

were employed, had two school-age children and had no

jury or psychiatric experience. (S.R. 120-121, 156-157)

The prosecutor excused only Ms. Jones, who is black.

Mrs. Hall was the victim of an unsolved crime and was

employed. (S.R. 28, 29, 35) Mrs. Hook was employed and

her father was the victim of an unsolved crime. (S.R.

125-126) The prosecutor excused only Mrs. Hall, who is

black. Ms. Hefferman, who was separated from her hus-

band, employed, had school-age children and experience

with psychiatrists, was acceptable to the State. (S.R. 36,

45) Ms. Jones, who was divorced, employed and had

school-age children (S.R. 155, 156), and Mrs. Hampton,

who had used the services of a psychiatrist (S.R. 53), were

not. Only Ms. Jones and Mrs. Hampton are black. Mrs.

Knoeizer and Ms. Winston were both employed, married,

had employed husbands and at least one grown child (S.R.

152-153 79-80), but the prosecutor was dissatisfied only

with Ms. Winston, who is black.

These facts support the conclusion that the explanation

proffered by the prosecution was a pretext for purposeful

discrimination. Such discrimination has not been toler-

ated since Strauder and Swain offers the prosecutor no

protectiun from the consequences of his misconduct.

* The state appellate court also observed that “an examination of

the record shows that white jurors who fell within the men, women

and age groups to which the State referred were not excused peremp-

torily by the State.” People v. Teague, 108 Ill. App.3d 891, 439 N.E.2d

1066, 1069-1070 (1st Dist. 1982).

C. The Failure Of Petitioner To Raise His Swain Claim In

State Court Does Not Bar That Claim As A Ground For

Relief On Collateral Review Where It Was Fairly Pre-

sented To The State Court And Rejected On Its Merits.

Although Teague made no argument in state court that

he was entitled to relief pursuant to Swain v. Alabama,

the court of appeals is not correct that this argument is

barred by procedural default pursuant to Wainwright v.

Sykes, 483 U.S. 72 (1977). Teague, 820 F.2d at 834 n.6.

Weathersby v. Morris was cited to both the district court

and the court of appeals as providing a basis to award

Teague relief. ‘tespondents did not assert in their

response to tni: argument that a procedural default bar-

red this claim. Their failure to raise this defense con-

stitutes a waiver because the merits of Teague’s claim are

evident and the state court did review in the context of

Swain the complaint that the prosecutor had made dis-

criminatory use of the peremptory challenge. Cf Granbe-

rry v. Greer, 481 U.S. ——, 107 S.Ct. 1671 (1987) (failure

of the State to raise the defense of exhaustion of state

remedies requires the court to determine whether the

interests of comity and federalism would be better served

by enforcement of exhaustion requirement).

Moreover, the state court rejected a Swain claim on its

merits. Petitioner argued to the state appellate court that

the prosecutor's proffered ex nlanation for exercise of its

challenges was not genuine because no basis existed to

distinguish between the ten excluded black jurors and

those jurors whom the prosecutor found acceptable

except for race. (Appellant’s Brief, pp. 80-82) The State

argued Swain was the “definitive United States Supreme

Court case in the area.” (Appellee’s Brief, p. 19) The

appellate court acknowledged that “white jurors who fell

within the men, women and age groups to which the State

referred were not excused peremptorily by the State” but

rejected Teague’s claim because he had failed to sustain

his burden of proof pursuant to Swain, declining to adopt

any representative cross-section requirement as placing

too great a limitation on the peremptory challenge. People

v. Teague, 108 Ill. App.3d 891, 439 N.E.2d 1066,

1069-1070 (1st Dist. 1982).

Although Teague did not argue that the state court

should examine the record and determine whether an

equal protection violation had been demonstrated pur-

suant to Swain, the state court resolved the issue as if he

had. The state court found no basis for relief pursuant to

Swain, overlooking Teague’s failure to request that the

record be evaluated in light of Swain. The state court

having decided the issue on its merits despite the lack of

preservation, a federal court may also reach the merits of

the issue without a showing of cause for the procedural

default and prejudice. Ulster County Court v. Allen, 442

U.S. 140, 149 (1979); Thomas v. Blackburn, 623 F.2d 383

(5th Cir. 1980).

The State urged the state court to judge Teague’s claim

on its merits in the context of Swain. The state court

concurred, holding Swain dispositive. Other courts pre-

sented with an argument that a prosecutor exercised his

peremptory challenges in an unconstitutional manner

similarly resolved the issue, no matter in what form it was

presented, by citing to Swain as the controlling authority.

See State v. Ucero, 450 A.2d 809 (R.I. 1982); Common-

wealth v. Henderson, 497 Pa. 23, 438 A.2d 951 (1981);

State v. Grady, 93 Wis. 1, 286 N.W.2d 607 (Wis. App.

1979); State v. Thompson, 276 S.C. 616, 281 S.E.2d 216

(1981); Gaines v. State, 404 So. 2d 557 (Miss. 1981). These

events suggest that the two claims, one based on the fair

cross-section requirement and the other on the Equal

Protection Clause, when made in the context of a pros-

ecutor’s exclusion of a racial group from a jury, may be so

factually and logically related that the raising of one

affords the state court a fair opportunity to consider both.

Williams v. Holbrook, 691 F.2d 3, 8 (1st Cir. 1982). The

interrelationship evidenced by the responses of litigants

and courts to complaints of a prosecutor's abuse of the

peremptory challenge supports the conclusion that the

presentation of the complaint on an alternative constitu-

tional theory provides the state court with a sufficient

opportunity to address the merits of the equal protection

claim.

All that is required to provide a state court with a fair

opportunity to apply constitutional principles and correct

any constitutional error committed by the trial court is

that the substance of the habeas claim be presented to the

state court. It is not enough that all of the facts necessary

to support the federal claim were before the state court,

but is sufficient if the claim is presented in such a way as to

fairly alert the state court to any applicable constitutional

grounds for the claim. U.S. ex rel. Sullivan v. Fairman,

731 F.2d 450, 453 (7th Cir. 1984). Here the state court was

presented with more than just the factual basis for the

claim. The prosecution alerted the court to the equal

protection theory and the court adopted that theory in

reaching the claim and rejecting it on its merits. To allow

the federal habeas court to utilize that same theory to

award relief to Teague would imply no disrespect for the

state court. Ulster County Court, 442 U.S. at 154. Tea-

gue’s failure to himself urge the state court to disapprove

the prosecutor's conduct as an equal protection violation

creates no obstacle to this Court’s resolution of the issue.

CONCLUSION

Wherefore, petitioner prays that the judgment of the

court of appeals be reversed and the cause be remanded

with directions that petitioner be released from custody

or that a hearing be conducted to determine whether the

prosecution made constitutionally permissible use of its

peremptory challenges.

Respectfully submitted,