# Petitioners Brief — Teague v. Lane > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1437%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1989 - **Citation:** 489 U.S. 288 ## Text 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, v. 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 i 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. il TABLE OF CONTENTS CPU REG. «coe pvecccsadcuanese+0560.5e SURSIOIOIN . sv ccccccsectcbebtesescsnuneeee DURST OF THE CAGE oo oo cccccccscésceseussenen SUMMARY OF ARGUBBEMT. ... 0c ccccscccceccccececes DRE o.oo 00 ssbeceeveceeustassanteeee I. Il. 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 PP 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 Oe ee Oo 10 12 15 21 23 iil 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. ......... EE 26 30 32 36 38 4] iv 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 . " 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 | 23 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 24 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 | 25 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 26 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), 27 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 28 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 29 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). 30 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 31 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 ») Qe 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. 33 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 34 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 35 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 36 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. 37 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). 38 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 39 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 40 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. 41 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, 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, Illino's 60601 (312) 917-5472 *Counsel of Record --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1437%3A06. Public record. Not legal advice.