Respondents Brief — Teague v. Lane

Supreme Court brief1989

Ask Donna

What actually matters in this document.

Text

No. 87-5259

Supreme Court, U.S.

FILED

JUL 1 1988

In Tue

Supreme Court of the United States

Ocroper Tzrm, 1987

FRANK DEAN TEAGUE,

Petitioner,

vs.

MICHAEL LANE, Director,

Department of Corrections, et al,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIE” FOR THE RESPONDENTS

NEIL F. HARTIGAN

Attorney General, State of [linois

ROBERT J. RUIZ

Solicitor General, State of Dlinois

TERENCE M. MADSEN

DAVID E. BINDI*

MARCIA L. FRIEDL

Assistant Attorneys General

100 West Randolph Street, 12th Floor

Chicago, [llinois 60601

(312) 917-2239

Counsel for the Respondents

* Counsel of Record

Printed by Authority of the State of Illinois (P.O. 34139—55—7-1-88)

? Yn

QUESTIONS PRESENTED FOR REVIEW

1. Whether application of the representative cross-

section principle to the petit jury so as to restrict the

use of peremptory challenges 1 unworkable and unsound?

2. For purposes of the rer «9 4, should the

date of the announcement of « «. ~ rule of constitutional

law be the controlling ever ., rather than some preceeding

event, and is the retroactive application of the rule of

Batson v. Kentucky to cases in which the conviction be-

came final before the decision unwarranted?

3. Is petitioner barred by procedural default from press-

ing his argument that a violation of Swain v. Alabama

is shown on the record in this case, and if not, does Swain

permit the use of peremptory challenges to excuse mem-

bers of a cognizable racial group for trial-related reasons

in an individual case where the defendant is a member

of the group?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..

TABLE OF AUTHORITIES .................

CONSTITUTIONAL PROVISIONS

EP PerrrrTrerrrrrrerrrTr rere

STATEMENT OF THE CASE ...............

SUMMARY OF ARGUMENT ................

ARGUMENT:

APPLICATION OF THE REPRESENTATIVE

CROSS-SECTION PRINCIPLE TO THE PETIT

JURY SO AS TO RESTRICT THE USE OF

PEREMPTORY CHALLENGES IS UNWORK-

4.BLE AND UNSOUND ...............4...

A. The Rationale Underlying The Cross-

Section Principle Does Not Provide Justi-

fication For Restricting The Use Of Per-

Geter y CREMMES occ ccccccsccvceces

B. Extension Of The Cross-Section Require-

ment Would Destroy The Value Of The

Peremptory Challenge And Seriously Un-

dermine The Ability Of Both Sides To

Select A Fair And Impartial Jury ....

C. Extension Of The Cross-Section Require-

ment Is Unworkable Because No Prin-

cipled And Practical Standard Has Been

PP Peerrerrerere rr roy ty

ili

Il.

FOR PURPOSES OF THE RETROACTIVITY

DOCTRINE, THE DATE OF THE ANNOUNCE-

MENT OF A NEW RULE OF CONSTITU-

TIONAL LAW IS THE ONLY APPROPRIATE

WATERSHED, AND THE RULE OF BATSON

v. KENTUCKY SHOULD NOT BE APPLIED

RETROACTIVELY TO CASES IN WHICH

THE CONVICTION BECAME FINAL PRIOR

TO THE DATE OF THE DECISION .......

A. The Denial Of Certiorari In McCray v.

New York Neither Foreshadowed The

Decision In Batson v. Kentucky Nor De-

stroyed The Precedential Effect Of Swain

CO SGD: kcidcescansiuacenestincix

B. Retroactive Application Of Batson To

Cases In Which The Conviction Became

Final Prior To The Decision Is Unwar-

ranted, Regardless Of Whether The

Harlan Approach Or The Three-Part

Linkletter Test Is Applied ...........

Ill.

PROCEDURAL DEFAULT BARS CONSIDER-

ATION OF PETITIONER’S THIRD ARGU-

MENT; AND, IN AN INDIVIDUAL CASE,

THE PEREMPTORY EXCUSAL OF JURORS

WHO ARE MEMBERS OF A COGNIZABLE

RACIAL GROUP TO WHICH THE DEFEN.

DANT ALSO BELONGS, IN THE BELIEF

THAT SUCH JURORS WILL BE SYMPA-

THETIC TO THE DEFENDANT BECAUSE OF

THE SHARED GROUP CHARACTERISTIC,

DOES NOT VIOLATE THE EQUAL PROTEC-

TION CLAUSE AS CONSTRUED IN SWAIN v.

REMUS oe cee ciccctcctdncccscnsceseces

A. The Argument That The Equal Protection

Clause As Construed In Swain Can Be

Violated By The Use Of Peremptory

Challenges In An Individual Case Was

Not Raised In Or Decided By The Illinois

MD. ¢tcccuensaneeeseseees

The Peremptory Excusal of Jurors Who

Are Members of A Cognizable Racial

Group To Which The Defendant Also

Belongs, In The Belief That They Will Be

Partial To The Defendant, Is Permitted

a IR oh eee een

i cebatuhueyeanegusecaénudeesaes

TABLE OF AUTHORITIES

CASES PAGE(S)

Alexander v. Louisiana, 405 U.S. 625 (1972) .. 14

Allen v. Hardy, 106 S.Ct. 2878 (1986) ..... 33, 34, 38

Apodaca v. Oregon, 406 U.S. 404 (1972) .... 17, 18, 23

Ballard v. United States, 329 U.S. 187 (1946) ... 14

Ballew v. Georgia, 435 U.S. 223 (1978) ........ 16, 17

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

Blackwell v. State, 248 Ga. 138, 281 S.E.2d 599

Dt shiddkevsudnlekeansaune cake ueesuede 19

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

cated, 106 S.Ct. 3289 (1986), opinion reinstated, ~

801 F.2d 871 (6th Cir. 1986), cert. denied, 107

a ee 19, 24, 25, 28, 34

Brown v. Allen, 344 U.S. 443 (1953) .......... 14

Buchanan v. Kentucky, 107 S.Ct. 2906 (1987) ... 11

Burch v. Louisiana, 441 U.S. 130 (1979) ...... 17, 23

Carter v. Jury Comm’n, 396 U.S. 320 (1970) .. 14

Commonwealth v. Henderson, 438 A.2d 951 (Pa.

DT Suuedcncbhseedantisseearusases kuccheas 19

Commonwealth v. Soares, 377 Mass. 481, 387

N.E.2d 499, cert. denied, 444 U.S. 881 (1979) .

et ne! Mig eR eee A ype eee eee ee 18, 24, 28, 39

ON eee ne ail eg ed ak ee te as 42

Desist v. United States, 394 U.S. 244 (1969) ... 35, 36

Duncan v. Louisiana, 391 U.S. 145 (1968) . 14, 21, 23

Duren v. Missouri, 439 U.S. 357 (1979) . . 23, 24, 26, 27, 28

Engle v. Isaac, 456 U.S. 107 (1982) ........... 42

Fay v. New York, 332 U.S. 261 (1947) ..... 14, 18, 25

Fields v. People, 732 P.2d 1145 (Colo. 1987) ... 18, 24

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

denied, 108 S.Ct. 233 (1987) .......... lasinn 42

Gideon v. Wainwright, 372 U.S. 335 (1963) .... 37

Glasser v. United States, 315 U.S. 60 (1942) .. 14, 20

Granberry v. Greer, 107 S.Ct. 1671 (1987) ..... 41

Griffith v. Kentucky, 107 S.Ct. 708 (1987) ..... 32, 36

Hernandez v. Texas, 347 U.S. 475 (1954) ...... 24

Irvin v. Dowd, 366 U.S. 717 (1961) ........... 18

Johnson v. Louisiana, 406 U.S. 356 (1972) .... 17

Kibler v. State, 501 So.2d 76 (Fla. App. 1987) ... 24

Linkletter v. Walker, 381 U.S. 618 (1965) ..... i)

Lockhart v. McCree, 476 U.S. 162 (1986) ......

Peakhasasdcdsadeubedetindenseauude 5, 11, 25, 26, 31

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

ened awe aus 6 ch wile al ae caine ae 32, 35, 36, 37

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

vacated, 106 S.Ct. 3289 (1986) .... 18, 19, 24, 28, 34

McCray v. New York, 461 U.S. 961 (1983) ... 8, 9, 32, 33

McCray v. New York, 51 U.S.L.W. 3740 (U.S.

April 12, 1983) (No. 82-1381) .............. 32

Mallot v. State, 608 P.2d 737 (Ala. 1980) ...... 19

Murray v. Carrier, 106 S.Ct. 2639 (1986) ..... 39

Nevius v. State, 699 P.2d 1053 (Nev. 1985) .... 19

vii

Palko v. Connecticut, 302 U.S. 319 (1937) ..... 37

People v. Snow, 44 Cal.3d 216, 242 Cal. Rptr. 477,

TUB PBS GER CIBGE) oc ccccccccccccvccccccces 30

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

1066 (1st Dist. 1982), cert. denied, 464 U.S. 867

SED: dsdandhecdebawnbedhisvacnacensucnees 3, 40

People v. Wheeler, 22 Cal.3d 258, 148 Cal. Rptr.

890, 583 P.2d 748 (1978) ......... 18, 24, 28, 30, 39

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

Riley v. State, 496 A.2d 997 (Del. 1985), cert.

denied, 106 S.Ct. 3339 (1986) .............. 18, 24

Roman v. Abrams, 822 F.2d 214 (2nd Cir. 1987) . 19

Shea v. Louisiana, 450 U.S. 51 (1985) ........ 36

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

Solem v. Stumes, 465 U.S. 638 (1984) ......... 38

State v. Gilmore, 103 N.J. 508, 511 A.2d 1150

SED ncucdces devdendescnsascnevespuekees 18, 24

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

DEEN i duvewthe duukeédes nkudaevenvéeenseos 19

State v. Neil, 457 So.2d 481 (Fla. 1984) ....... 18, 24

Stale v. Sims, 639 S.W.2d 105 (Mo. App. 1982) .. 19

State v. Stewart, 225 Kan. 410, 591 P.2d 166 (1979) 19

State v. Ucero, 450 A.2d 809 (R.I. 1982) ...... 19

State v. Wiley, 144 Ariz. 525, 698 P.2d 1244 (1985) . 19

Stovall v. Denno, 388 U.S. 293 (1967) ......... 35

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

ceed cbekousatevendéssdeeeawasesses Teas 14, 15, 20

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

Vili

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

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

ibeb4usdbecnscdeesndeekeetnteneune 14, 18, 20, 25

United States v. Carter, 528 F.2d 844 (8th Cir.

1975), cert. denied, 425 U.S. 961 (1976) .... 42

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

1983) (en banc), cert. denied, 464 U.S. 1063

al le eee eRe & 19

DD Seddon ecndsedecdniseorsscbededsncsees 42

United States v. Johnson, 457 U.S. 537 (1982) ... 36

United States v. Leslie, 783 F.2d 541 (5th Cir. 1986)

(en banc), vacated, 107 S.Ct. 708 (1987), opinion

following remand, 816 F.2d 1006 (5th Cir.

RNR, itcad Uo bead Dede ea ane. 19

United States v. Newman, 549 F.2d 240 (2nd Cir.

I i Sei ok ete eee ee ia 40, 42

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

cert. denied, 469 U.S. 1024 (1984) .......... 42

United States v. Whitfield, 715 F.2d 145 (4th Cir.

a ait he il a el al Be 19

Virginia v. Rives, 100 U.S. 313 (1880) ........ 15, 16

Weatherséy v. Morris, 708 F.2d 1493 (9th Cir.

1983), cert. denied, 464 US. 1046 (1984) ... 19, 40, 42

Williams v. Florida, 399 U.S. 78 (1970) ....... 16

Willis v. Zant, 720 F.2d 1212 (11th Cir. 1983), cert.

denied, 467 U.S. 1256 (1984) .............. 19, 24

Witherspoon v. Illinois, 391 U.S. 510 (1968) ... 18

Yates v. Aiken, 108 S.Ct. 534 (1988) .......... 36

OTHER AUTHORITIES

U.S. Const., Amend.

U.S. Const., Amend

1977, ch.

1981, ch.

Ill.

Rev.

Stat.

» Bee, MOB. BD ncccccseccess

_ Beerrrrererr itr

1986 Supp., ch. 78, 84 .........

1977, che38, §115-4(b) ..........

1977, ch.

38, §115-4(e) ..........

Illinois Supreme Court Rule 234 ..............

Illinois Supreme Court Rule 434{a) ............

Annot., 62 ALR 4th 859 (1988) ............4.-.

owo wo W

No. 87-5259

In Tue

Supreme Court of the United States

Ocroper Term, 1987

FRANK DEAN TEAGUE,

Petitioner,

vs.

MICHAEL LANE, Director,

Department of Corrections, et al,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR THE RESPONDENTS

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution

Amendment VI

In all criminal prosecutions, the accused shall enjoy the

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

of the State and district wherein the crime shall have

been committed, which district shall have been previous-

ly ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for ob-

taining witnesses in his favor, and to have the Assistance

of Counsel for his defence.

United States Constitution

Amendment XIV, Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdictien the equal protection

of the laws.

STATEMENT OF THE CASE

On the evening of February 5, 1977, petitioner entered

an A & P supermarket in Oak Park, Illinois, armed with

a pistol, and committed a robbery. As he left the store,

he was confronted by two police officers who were re-

sponding to a radio broadcast reporting an armed robbery

in progress. One of the officers identified himself and

sulle

ordered petitioner to halt. Petitioner drew a gun and fired

at the officers, and then fled. Both officers chased peti-

tioner on foot. Shots were exchanged, and petitioner

wounded one of the officers in the leg. He was eventual-

ly apprehended by a third officer responding to the call.

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

1073 (1st Dist. 1982), cert. denied, 464 U.S. 867 (1983).

Petitioner’s insanity defense was unsuccessful, and he

was convicted of armed robbery and attempted murder.

The trial court sentenced him to concurrent terms of 30

years. 439 N.E.2d at 1068.

On direct appeal, petitioner raised, among others, a

claim that the prosecutor’s use of peremptory challenges

to excuse ten black prospective jurors, with the result

that no blecks were on the jury that tried the case, vio-

lated his rights to due process ani a jury representative

of the community under the Sixth and Fourteenth Amend-

ments to the federal Constitution. Relying on its own

prior determination that the Sixth Amendment cross-sec-

tion requirement. does not apply at the petit jury stage,

the appellate court rejected this claim. 439 N.E.2d at

1069-71.

Petit jury selection procedures in Illinois are governed

by statute and by Supreme Court Rules. In all criminal

cases, a jury of twelve must be selected, //l. Rev. Stat.

1977, ch. 38, §115-4(b), and the jurors are examined and

passed upon in panels of four, with the prosecution using

its challenges first and the parties alternating thereafter.

Supreme Court Rule 434(a). In a case such as this one,

where imprisonment is a possible penalty, each side is

allowed ten peremptory challenges. Jll. Rev. Stat. 1977,

ch. 38, par. 115-4(e). Pursuant to Supreme Court Rule 234,

the trial court elected in this case to conduct the voir dire

examination himself. (R. Supp., 3)

—

During the course of jury selection, defense counsel

moved for a mistrial on the ground that the prosecutor

had used each of his first six peremptory challenges to

excuse black jurors. The motion was denied at the time,

but it was renewed at the conclusion of jury selection,

when defense counsel alleged that all ten of the prose-

cutor’s peremptory challenges had been used to excuse

black jurors. In response to the motion, the prosecutor

explained that he used his challenges to excuse younger

members of the venire, and to obtain a balance of men

and women. The motion was again denied. (J.A. 2-4)

On review of petitioner’s application for a writ of habeas

corpus, a divided en bane Court of Appeals held that

(1) the cross-section requirement of the Sixth Amendment

afforded no basis for granting relief because it does not

apply at the petit jury selection stage so as to restrict

the use of peremptory challenges; (2) Batson v. Kentucky,

476 U.S. 79 (1986), which was decided after petitioner’s

conviction became final, does not apply retroactively to

cases on collateral review; and (3) that review of peti-

tioner’s argument concerning the applicability of Swain

v. Alabama, 380 U.S. 202 (1965) to his case was barred

by procedural default and was without merit. (J.A. 14-53)

On March 7, 1988, certiorari was granted to review all

three determinations. (J.A. 54)

SUMMARY OF ARGUMENT

I. Thirteen years ago, this Court held in Taylor v.

Louisiana, 419 U.S. 522 (1975) that the Sixth Amendment

right to trial by jury includes the right to a jury selected

from a representative cross-section of the community.

Three times since then, this Court has been asked to ex-

—__

= =

tend the cross-section requirement to the petit jury so

as to impose restrictions on the use of for-cause or per-

emptory challenges, and three times it has refused, stating

in Lockhart v. McCree, 476 U.S. 162 (1986) that such an

extension would be unworkable and unsound. Petitioner

argues that adoption of such an extension follows from

what this Court has said about the purpose of the require-

ment and its relation to the purpose of the jury. This

argument ignores the significant difference between the

process of selecting prospective jurors for all cases and

the process of selecting petit jurors to try a particular

case. Moreover, extension of the cross-section requirement

would destroy the value of the peremptory challenge and

seriously undermine the ability of both the prosecution

and the defense to select fair and impartial jurors. Finally,

such an extension is unworkable because the standard

petitioner proposes for enforcing the cross-section require-

ment at the petit jury stage does not promote the prin-

ciple he invokes.

A. In the first two steps involved in selecting a petit

jury, establishing a pool of eligible persons and drawing

a venire, the selection criteria are general. Minima! quali-

fication is all that is required. In the next two steps, the

exercise of for-cause and peremptory challenges after voir

dire examination, the criteria are very specific, because

the ability of prospective jurors to be impartial in the con-

text of a specific case is being evaluated. While this Court

has long recognized the value of broad-based community

involvement in the grand and petit jury system, it has

never required that the diversity of the community be

reflected beyond the pool and venire stages, and has been

careful to emphasize that the cross-section principle pro-

vides no right to a petit jury of any particular composi-

tion. However, following Taylor, some state and federal

jurisdictions have held, largely in reliance on this Court’s

= =

decisions, that the cross-section principle must be applied

at the petit jury stage in order for it to be effectuated,

and that the use of peremptory challenges must be re-

stricted accordingly. Many more state and federal juris-

dictions have rejected this approach. The cross-section re-

quirement serves its purpose at the pool and venire stages

by insuring that no distinctive group can be declared a

priori unfit for jury service. Thus, no group may be offi-

cially branded as inferior, and the jury, as an institution,

is not made the organ of a special class. Furthermore,

the requirement that jury pools be representative and

venires drawn at random insures that the composition of

the venire cannot be known before the decision to charge

an offense is made, and tnus the cross-section requirement

serves to discourage the corrupt or overzealous prosecutor

from bringing unfounded charges. Petitioner’s argument

that the prophylactic purpose of the jury is thwarted by

the peremptory excusal of members of a distinctive group

just as if the group had been excluded from the venire

is an argument that affirmative steps must be taken to

produce cross-sectional petit juries, something this Court

has often said is an impossible and undesirable goal. More-

over, this Court’s decisions do not support the argument

that any procedure, at any stage of the selection process,

which may detract from the possibility provided by the

random draw of obtaining a cross-sectional jury violates

the Sixth Amendment. Rather, this Court has acknowledged

that cross-sectional values, while important, are not always

paramount. The impact extension of the cross-section re-

quirement would have on the peremptory challenge, and

on the overall fairness of the jury system, must therefore

be considered.

B. If the cross-section requirement is extended to the

petit jury, it must be assumed that the considerations

which define a cognizable group would be the same as

when the composition of the pool or venire is examined,

because any arbitrary limitation on what groups may be

considered cognizable is inconsistent with the principle.

Cognizability is a question of fact, depending on sufficient

numbers and distinctiveness of the members of a group

at a given place and time, and thus the types of groups

which may be cognizable is potentially limitless, and the

determination of cognizability may require an extensive

evidentiary hearing. Also, if extensior. of the cross-section

requirement is necessary to insure a jury which is fair

and satisfies the appearance of fairness, then the use of

peremptory challenges by the defense must also be re-

stricted because both sides are entitled to a fair trial.

Extension of the cross-section requirement would there-

fore limit the use of peremptory challenges to an infinitely

greater degree than does the Equal Protection Clause as

construed in Batson v. Kentucky, 476 U.S. 79 (1986). It

would prohibit their use, by both sides, for all but frivo-

lous reasons or the most palpable manifestations of indi-

vidual bias, and this is inconsistent with this Court’s

recognition in Batson of the important role played by the

peremptory challenge. The challenge permits the elimina-

tion of extremes of partiality at both ends of the spec-

trum, and whenever group membership correlates with

partiality for purposes of the issues involved in a par-

ticular case, the challenge of one side or the other will

be directed at that group to some degree. In such a case,

the peremptory challenge promotes impartiality, the core

guarantee of the Sixth Amendment, while rigid adherence

to cross-sectionalism dissipates impartiality. Extension of

the cross-section requirement would therefore destroy the

value of the peremptory challenge and detract from jury

impartiality.

C. The standard proposed by petitioner for enforcing

the cross-section requirement at the petit jury stage is

allie.

not only significantly different from the standard proposed

by amicus, both differ from the standard used in tne

jurisdictions that have adopted the extension argument.

None of these standards promotes the cross-section prin-

ciple. Petitioner proposes that a prima facie case can be

established by showing that (1) the excluded group is a

cognizable group; (2) representation of the group on the

petit jury is not fair in relation to its numbers in the

community; and (3) the underrepresentation is due to the

prosecutor’s use of peremptory challenges. The inclusion

of a proportionality element in this standard means one

of two things. Either group-based peremptory challenges

are permissible once proportional representation is ac-

hieved, in which case the fundamental premise of the ex-

tension argument as set forth in the cases which adopt

it is false; or the real aim of petitioner’s position is to

acquire a right to a jury of a particular composition, con-

sisting of a proportionate number of jurors who are mem-

bers of one or more groups he deems partial to him. The

standard proposed by amicus similarly focuses on propor-

tionality, but seeks comparison of the percentage of group

members left on the venire after the prosecutor’s chal-

lenges with their proportion in the community, and does

not propose examination of the petit jury at any point.

Thus, much litigation could take place over the use of chal-

lenges even though the group in question is overrepre-

sented on the petit jury. The standard used in other juris-

dictions does not contain a proportionality element, and

its purpose is to eliminate all group-based peremptory

challenges. However, this leads to reversal of convictions

in the name of cross-sectionalism even if the jury actual-

ly chosen is a perfect mirror of the community.

II. Petitioner’s argument that retroactive application

of Batson v. Kentucky, 476 U.S. 79 (1986) should be deter-

mined as of the time of the denial of certiorari in McCray

ilies

v. New York, 461 U.S. 961 (1983), or alternatively, that

all new constitutional rules should be fully retroactive, is

insupportable under any of the views on retroactivity ex-

pressed by this Court.

A. The denial of certiorari in McCray did not fore-

shadow the result in Batson because the opinion respect-

ing the denial of certiorari and the dissenting opinion

discuss the developments in Sixth Amendment jurispru-

dence following Swain v. Alabama, 380 U.S. 202 (1965),

but Batson was decided on equal protection grounds. By

the same token, the opinions in McCray did not destroy

the precedential effect of Swain, and even those courts

that accepted the invitation extended in McCray to serve

as laboratories did not dispute that Swain remained the

dominant equal protection precedent. To suggest that Mc-

Cray had the impact petitioner attributes to it for retro-

activity purposes is to suggest that the opinions accom-

panying the denial of certiorari establish a more signifi-

cant watershed in constitutional law than a subsequent

decision expressly overruling a prior precedent. Moreover,

petitioner’s argument that a third category of cases should

be created for purposes of Batson retroactivity, consisting

of cases in which the conviction became final after McCray

but before Batson, is unsound. This argument seeks to

attribute to McCray a significance which, although not

decisive, should nevertheless have some impact on the

question of retroactivity. No reason is given as to why

this should be so.

B. The present debate on the doctrine of retroactivity

is between two competing theories: Justice Harlan’s view

that all new rules of constitutional law should be retro-

actively applied to all non-final cases at the time of the

decision, but, with two narrow exceptions, not to cases

on collateral review; and the view that the three-part test

of Linkletter v. Walker, 381 U.S. 618 (1965) should apply.

=_S

Under either approach, retroactive application of Batson

to cases on collateral review at the time of the decision

is unwarranted. Petitioner’s contention that new rules of

constitutional law should be fully retroactive is not sup-

ported by any decision of this Court.

III. Consideration of petitioner’s claim that the record

supports a finding of error under Swain v. Alabama, 380

U.S. 202 (1965) is barred by procedural default, and is

without merit.

A. Petitioner did not raise an equal protection argu-

ment in state court. He argued for extension of the cross-

section requirement under either state or federal constitu-

tional principles, and cited Swain only to distinguish its

constitutional basis from the one he intended to invoke.

The appellate court did not rely on Swain as dispositive

of the claim, it relied on its own prior decision declining

to extend the cross-section requirement. On habeas re-

view, petitioner’s claim was of the same character as the

one presented in state court, and it was not until after

the decision in Batson v. Kentucky, 476 U.S. 79 (1986)

that he clearly stated an intent to invoke the Equal Pro-

tection Clause. Respondents promptly objected on pro-

cedural default grounds, and the Court of Appeals held

the claim defaulted.

B. The predominant view of Swain is that it permits

counsel to take the group affiliation of prospective jurors

into account when exercising peremptory challenges, if

they believe that group affiliation is a trial-related reason

for excusal. A fair construction of Swain supports this

view.

otfin

ARGUMENT

APPLICATION OF THE REPRESENTATIVE CROSS-

SECTION PRINCIPLE TO THE PETIT JURY SO AS TO

RESTRICT THE USE OF PEREMPTORY CHALLENGES

IS UNWORKABLE AND UNSOUND.

Three times since Taylor v. Louisiana, 419 U.S. 522

(1975) held that the Sixth Amendment right to trial by

jury included the right to “selection of a petit jury from

a representative cross section of the community”, id. at

528, this Court has been asked to extend the cross-section

requirement so as to impose restrictions on a prosecutor’s

for-cause or peremptory challenges, and three times it has

declined to do so. Buchanan v. Kentucky, 107 S.Ct. 2906,

2913 (1987); Lockhart v. McCree, 476 U.S. 162, 174 (1986);

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

Cree, this Court said:

. . we do not believe that the fair cross-section re-

quirement can, or should, be applied as broadly as

[the Court of Appeals] attempted to apply it. We

have never invoked the fair cross-section principle to

invalidate the use of either for-cause or peremptory

challenges to prospective jurors, or to require petit

juries, as opposed to jury panels or venires, to reflect

the composition of the community at large... . The

limited scope of the fair cross-section requirement is

a direct and inevitable consequence of the practical

impossibility of providing each criminal defendant

with a truly “representative” petit jury, ... a basic

truth that the Court of Appeals itself acknowledged

for many years prior to its decision in the instant

case.... We remain convinced that an extension of

the fair cross-section requirement to petit juries

would be unworkable and unsound, and we decline

McCree’s invitation to adopt such an extension.

476 U.S. at 173-174 (citations omitted).

ation

Petitioner offers a disarmingly simple explanation for

why such an extension must now be adopted. He says

that if it is constitutionally imperative for the pool of eligi-

ble jurors to include all distinct and cognizable groups

within the community, it can only be because the require-

ment is intended to have some impact on the composition

of the petit jury; and that it follows from this that any

practice, at any stage of the selection process, which may

reduce the possibility of having the petit jury reflect the

demographic makeup of the community bears a burden

of justification under the fair cross-section principle.

The argument for extension of the cross-section require-

ment is, as this Court said in McCree, unsound. As dis-

cussed in Part I.A, there is a constitutionally significant

difference between the process of establishing a jury pool

and selecting a venire to provide jurors for all cases, and

the process of selecting a petit jury from that venire to

try an individual case. The cross-section requirement re-

flects the belief that no class of citizens may be considered

a priori unfit for jury service in any case solely on the

basis of group affiliation, but its theoretical underpinnings

do not logically extend to justify restricting a litigant’s

use of peremptory challenges to select impartial jurors

in a particular case. Part I.B addresses the point that,

while subject to the limited restrictions mandated by the

Equal Protection Clause as construed in Batson, the

peremptory challenge nevertheless continues to play an

important role in the ability of both sides to choose fair

and impartial jurors, and its salutary effect on the admin-

istration of criminal justice would be lost, for both sides,

if petitioner’s position is adopted.

Furthermore, extension of the cross-section requirement

would be, as this Court also said in McCree, unworkable.

As discussed in Part I.C, the impracticality of applying

the cross-section principle at the petit jury stage is demon-

strated by the fact that the standard proposed by peti-

tioner is fundamentally different from the standard pro

posed by amicus The Lawyers’ Committee for Civil

Rights Under Law (amicus The NAACP Legal Defense

and Education Fund, Inc., proposes no standard), and both

differ significantly from the standards used by the States

and the federal circuits which have taken this approach;

and by the fact that none of these standards promotes

cross-sectional values in a practical and principled way.

A. The Rationale Underlying The Cross-Section Principle

Does Not Provide Justification For Restricting The Use

Of Peremptory Challenges.

There are four steps involved in the process of select-

ing a jury to try a case: establishing a pool of persons

eligible to serve as jurors in all cases; drawing venires

from the pool to ubtain the number of prospective jurors

needed for all cases pending at a given time; voir dire

examination of the venire to determine which jurors should

be dismissed from a particular case for cause; and the ex-

ercise of peremptory challenges by both parties. In the

first two steps, the selection criteria are necessarily

general, since the proper function of those stages is only

to cull those who are unfit to serve in any case, and those

who should be granted an exemption for valid public

policy reasons. By contrast, the focus of the third and

fourth stages is on the ability of jurors to fairly and im-

partially serve in an individual case.

Prior to the decision in Taylor, a number of this Court’s

cases acknowledged the importance of broad-based com-

munity involvement in the grand and petit jury system,

as contributing to its fairness and its appearance of fair-

ness. Selection methods which entirely excluded whole

groups from the pool of eligible jurors, or routinely re-

sulted in radical underrepresentation of distinctive groups

nition

on the venires from which jurors were chosen, had been

reviewed under the principles of equal protection, Alex-

ander v. Louisiana, 405 U.S. 625, 628 (1972); Carter v.

Jury Comm’n, 396 U.S. 320, 331-332 (1970); Brown v.

Allen, 344 U.S. 443, 470-471 (1953); Smith v. Texas, 311

U.S. 128, 129-130 (1940); Strauder v. West Virginia, 100

U.S. 303, 305-306 (1880), due process, Peters v. Kiff, 407

U.S. 493, 502 (1972) (plurality opinion); Fay v. New York,

332 U.S. 261, 289 (1947), and, in some cases, this Court

invoked its supervisory authority over the lower federal

courts, Ballard v. United States, 329 U.S. 187, 193 (1946):

Thiel v. Southern Pacific Co., 328 U.S. 217, 225 (1946);

Glasser v. United States, 315 U.S. 60, 87 (1942). All of

these cases involved selection criteria being applied at the

pool or venire stage, and from them emerged the cross-

section principle announced in Taylor: “that the selection

of a petit jury from a representative cross section of the

community is an essential component of the Sixth Amend-

ment right to a jury trial.’”’ 419 U.S. at 528. There is no

question that the pool and the venire from which peti-

tioner’s jury was selected were drawn in compliance with

this command.!

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

springboard for the jump made in Taylor from what had

largely been an equal protection analysis to one grounded

in the Sixth Amendment. Duncan held that the right to

trial by jury was to be applied against the States through

the Due Process Clause of the Fourteenth Amendment.

' At the time of petitioner’s trial, the source list for the pool of

eligible jurors was the list of registered voters, /ll. Rev. Stat. 1977,

ch. 78, §1, and venires were drawn at random from the pool. §8.

Qualifications for service were minimal, but there were a number

of comepenane: onmenptions. §§2, 4. In 1981, the source list was aug-

mented by adding the list of valid driver’s license holders, Jil. Rev.

Stat. 1981, ch. 78, §§1-la, and in 1987, automatic exemptions were

almost completely eliminated. Il. Rev. Stat. 1986 Supp., ch. 78, §4.

= =

Id. at 149. The explanation in Duncan of the function of

a jury was relied on in Taylor to incorporate the cross-

section principle into the jury trial right:

The purpose of a jury is to guard against the exercise

of arbitrary power—to make available the common-

sense judgment of the community as a hedge against

the overzealous or mistaken prosecutor and in prefer-

ence to the professional and perhaps overconditioned

or biased response of a judge. Duncan v. Louisiana,

391 U.S., at 155-156. This prophylactic vehicle is not

provided if the jury pool is made up only of special

segments of the populace or if large, distinctive groups

are excluded from the pool. Community participation

in the administration of the criminal law, moreover,

is not only consistent with our democratic heritage

but is also critical to public confidence in the fairness

of the criminal justice system. Restricting jury ser-

vice to only special groups or excluding identifiable

segments playing major roles in the community can-

not be squared with the constitutional concept of jury

trial.

419 U.S. at 530. Still, the holding was limited: the Court

emphasized that “we impose no requirement that petit

juries actually chosen mirror the community and reflect

the various distinctive groups in the population. Defen-

dants are not entitled to a jury of any particular compo-

sition, ... but the jury wheels, pools of names, panels,

or venires from which juries are drawn must not system-

atically exclude distinctive groups in the community and

thereby fail to be reasonably representative thereof.” Jd.

at 538 (citation omitted). This has been a feature of the

cross-section principle since its genesis. While holding that

the disqualification of blacks from jury service in all cases

violated equal protection, Strauder, 100 U.S. at 308, the

Court at the same time recognized that there is no consti-

tutional right to the inclusion of blacks on the jury in any

individual case, Virginia v. Rives, 100 U.S. 313, 320-322

(1880), and it has never retreated from that holding. Bat-

son, 476 U.S. at 85, n. 6. Even now, petitioner does not

contend that the cross-section principle can be read to re-

quire proportional representation, or indeed any represen-

tation, of any distinctive group on the petit jury chosen

to try a particular case.

The cross-section principle also played a role in the cases

dealing with jury size and unanimity. In Williams v.

Florida, 399 U.S. 78 (1970), the Court held that the tradi-

tion of a jury of 12 was based more on historical acci-

dent than on any significant quality associated with that

number for purposes of the right to a jury trial, and that

juries of six did not offend the Sixth Amendment. Jd. at

100-103. In response to the argument that the reduced

size of the jury would result in a corresponding re iuc-

tion in the opportunity to achieve cross-sectional represen-

tation, the Court said:

... While in theory the number of viewpoints repre-

sented on a randomly selected jury ought to increase

as the size of the jury increases, in practice the dif-

ference between the 12-man and the six-man jury in

terms of the cross-section of the community repre-

sented seems likely to be negligible. Even the 12-man

jury cannot insure representation of every distinct

voice in the community, particularly given the use

of the peremptory challenge. As long as arbitrary ex-

clusions of a particular class from the jury rolls are

forbidden, see, e.g., Carter v. Jury Commission, 396

U.S. 320, 329-330 (1970), the concern that the cross-

section will be significantly diminished if the jury is

decreased in size from 12 to six seems an unrealistic

one.

Id. at 102. Subsequently, in Bellew v. Georgia, 435 U.S.

223 (1978), the Court found that, although the process of

constitutional line-drawing in cases regarding jury size is

somewhat artificial, id. at 231-232, the line had to be

- =

drawn at six; a jury of five was held unconstitutional.

Petitioner says the Court reached this result “because [a

jury of five] decreases the opportunity for meaningful and

appropriate representation of a cross section of the com-

munity” (Pet. Br. at 11-12), but that is only partially ac-

curate. This Court actually enumerated five separate con-

cerns which led to its holding, and the concern for cross-

sectional representation ranked fourth. Jd. at 232-239.

Other concerns included the negative effect on the dy-

namics of group deliberation, a greater risk of inaccurate

results, and large disparities in the results in close cases.

Id. A verdict by a non-unanimous six-person jury was held

to violate the Sixth Amendment for the same reasons in

Burch v. Louisiana, 441 U.S. 130, 138 (1979), but in Apodaca

v. Oregon, 406 U.S. 404 (1972) (plurality opinion), the Court

upheld a statute permitting the return of non-unanimous

verdicts from 12-person juries, and expressly rejected the

contention that it led to nullification of minority viewpoints

in violation of the cross-section requirement. Jd. at 412-

414. See also, id. at 378-380 (Powell, J., concurring in the

judgment).?

In each of this Court’s decisions dealing with the cross-

section principle, a systemic aspect of the jury trial, af-

fecting all cases, has been involved. In Taylor and the

cases that led up to it, it was the way in which jury pools

were defined and jury venires drawn, and in Williams,

Apodaca, and Ballew, it was the format of the petit jury

system. Throughout these decisions, the Court has always

been careful to avoid having its opinions construed to im-

2 Apodaca involved a statute authorizing a verdict by a vote of

10 to two. 406 U.S. at 406. On the same day, the Court upheld a

statute permitting a verdict by a vote of nine to three in Johnson

v. Louisiana, 406 U.S. 356 (1972), but no argument was raised in

that case concerning the impact on the cross-section requirement.

pute any extension of the cross-section requirement to the

composition of the petit jury actually chosen to try an

individual case. Taylor, 419 U.S. at 538; Apodaca, 406

U.S. at 413; Fay, 332 U.S. at 284; Thiel, 328 U.S. at 220.°

Nevertheless, the California Supreme Court held in Peo-

ple v. Wheeler, 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d

748 (1978), that the cross-section principle is violated by

the use of peremptory challenges in an individual case to

excuse any members of a cognizable group on the basis

of a supposed bias common to members of the group, and

although the holding was grounded in the state constitu-

tion, the court relied largely on the decisions of this Court

discussed above to support the result reached. 538 P.2d

at 754-757. Since then, five other states* and two federal

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

106 S.Ct. 3289 (1986), the court posited that the decisions in the

j size and unanimity cases, and in Witherspoon v. Illinois, 391

US. 510 (1968), authorized ‘‘constitutional scrutiny” of the steps

involved in sel a petit jury from the venire in a specific case.

750 F.2d at 1129. This reading of Ballew and Apodaca is unwar-

ranted, because neither case involved scrutiny of the composition

of a particular petit quty, they involved scrutiny of the structure

of the jury system. While Witherspoon did involve the composi-

tion of the petit jury, it did not rest on the loss of 2 distinctive

community group through the cause excusai of death-scrupled

jurors, it rested on the loss of impartiality in a jury so composed.

391 U.S. at 518. No one disputes that the composition of a single

jury may be examined to determine whether it is impartial, see,

e.g., Irvin v. Dowd, 366 U.S. 717 (1961), but the impartiality of

the jury in this case is not in question. Moreover, it would be dif-

ficult to square the Second Circuit’s view of Witherspoon with this

Court’s statement in McCree that “[wle have never invoked the

fair cross-section principle to invalidate the use of either for-cause

or peremptory challenges to prospective jurors. ..’’ 476 U.S. at

173 (emphasis added).

4 Fields v. People, 732 P.2d 1145 (Colo. 1987); State v. Gilmore,

103 N.J. 508, 511 A.2d 1150 (1986); Riley v. State, 496 A.2d 997

(Del. 1985), cert. denied, 106 S.Ct. 3339 (1986); State v. Neil, 457

So.2d 481 (Fla. 1984); Commonwealth v. Soares, 377 Mass. 481,

387 N.E.2d 499, cert. denied, 444 U.S. 881 (1979).

~19~—

circuits’ have adopted the rationale of Wheeler. Many

more state courts® and federal circuits? have rejected this

approach.

Petitioner’s argument is based on McCray and Booker,

which in turn are based on Wheeler. It is that extension

of the cross-section requirement to the petit jury follows

necessarily from what was said in Taylor about the func-

tion of the requirement and its relation to the function

of the jury. He says that the requirement that jury pools

and venires be representative would be pointless if it were

not intended to have some impact on the composition of

the petit jury, and would be nullified if the peremptory

challenge could be used to accomplish in an individual case

what would be impermissible at the pool and venire selec-

tion stages. (Pet. Br. at 10-11) He also argues that the

function of the jury is the interposition of the common-

sense judgment of the community between the govern-

ment and the accused, and that this function could not

be performed if any distinctive group could be excluded

5 McCray, supra; Roman v. Abrams, 822 F.2d 214 (2nd Cir.

1987); Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985), vacated, 106

S.Ct. 3289 (1986), opinion reinstated, 801 F.2d 871 (6th Cir. 1986),

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

6 See, e.g., Nevius v. State, 699 P.2d 1053 (Nev. 1985); State v.

Wiley, 144 Ariz. 525, 698 P.2d 1244 (1985); State v. Ucero, 450 A.2d

809 (R.I. 1982); State v. Sims, 639 S.W.2d 105 (Mo. Ap pp. 1982);

Commonwealth v. Henderson, 438 A.2d 951 (Pa. 1981); Blackwell

v. State, 248 Ga. 138, 281 S.E.2d 599 (1981); Mallot v. State, 608

P.2d 737 (Ala. 1980); State v. Grady, 93 Wis.2d 1, 286 N.W.2d 607

(1979); State ». Stewart, 225 Kan. "410, 591 P.2d 166 (1979).

7 United States v. Leslie, 783 F.2d 541 (5th Cir. 1986) (en banc),

vacated, 107 S.Ct. 708 (1987), opinion following remand, 816 F.2d

1006 (5th Cir. 1987); Willis v. Zant, 720 F.2d 212 (11th Cir. 1983),

cert. denied, 467 U.S. 1256 (1984); United States v. Childress, 715

F.2d 1313 (8th Cir. 1983) (en banc), cert. denied, 464 U.S. 1063

(1984); United States v. Whitfield, 715 F.2d 145 (4th Cir. 1983);

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

464 U.S. 1046 (1984).

—20—

from the petit jury. (Pet. Br. at 12-13) Finally, he says

that the legitimacy of the judicial system suffers in the

eyes of the community when the jury that decides a case

lacks the appearance of a body representative of the com-

munity. (Pet. Br. at 14) The first part of this argument

ignores the significant difference between the process of

selecting pools or venires and the process of selecting a

petit jury, and misinterprets the relevant decisions of this

Court. The second and third parts are indistinguishable

from the contention that affirmative steps should be taken

to have each petit jury actually mirror the diversity of

the community.

The equal protection cases which led up to Taylor make

clear that the exclusion of distinctive groups from eligibil-

ity for jury service in any case is discriminatory and per-

nicious in ways that the use of peremptory challenges in

an individual case is not. Disqualifying the members of

a group from jury service in all cases acts as “a brand

upon them, affixed by the law, an assertion of their inferi-

ority”, Strauder, 100 U.S. at 308, while the use of per-

emptory challenges indicates no more than the belief of

a litigant in a particular case involving particular issues

that the challenged jurors are likely to have a bias with

respect to those issues. A priori disqualification based on

group affiliation also creates the impression that the jury,

as an institution, is “the organ of [a] special group or

class”, Glasser, 315 U.S. at 86, while individuals of any

group are subject to peremptory challenges in any case.

To say that competence for jury service in general “is

an individual rather than a group or class matter’’, Thiel,

328 U.S. at 220, is not the same as saying that group

identity bears absolutely no relation to the ability of jurors

to fairly and impartially decide the issues in a particular

case. Furthermore, the contention that if Taylor is not

extended it will be rendered a nullity, and the jury will

cease to operate as the intended buffer between the gov-

ernment and the accused, is overstated. The requirement

that jury pools be representative and venires be selected

at random means that the prosecutor cannot know prior

to the decision to charge an offense what the composi-

tion of the venire will be, and cannot count on having

enough peremptory challenges to exclude members of

groups deemed partial as well as those individuals with

more palpable biases. Thus, the requirement that the pool

and venire be cross-sectional discourages “the corrupt or

overzealous prosecutor” from bringing “unfounded crim-

inal charges.”’ Duncan, 391 U.S. at 156.

Respondents are in complete agreement with peti-

tioner’s statement that the “prophylactic purpose [of the

jury] 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...” (Pet. Br. at 13)

However, petitioner makes the leap from this proposition

to the following one, in the same sentence: “... neither

can [the prophylactic purpose] be served if a distinctive

group is excluded from the petit jury by peremptory

challenge.” (Pet. Br. at 13) (emphasis added). Nowhere

does he explain why the exercise of the peremptory chal-

lenge is the operative occurrence which negates the proper

functioning of the jury. It is entirely possible that a dis-

tinctive group could be excluded from the petit jury be-

cause the random draw of a venire produced an aberrant

underrepresentation of the group, and because those mem-

bers who were called were properly excused for cause.

Nor does petitioner explain why a multi-racial, multi-ethnic

jury of six men and six women from which all Catholics

have been peremptorily excused cannot possibly operate

as the Sixth Amendment intended it to in a case with

no religious overtones at all, while an all-white, all-male,

socioeconomically homogenous jury selected without the

- =

use of any peremptory challenges in a case fraught with

racial tensions and involving a black female defendant can.

The argument that peremptory excusal at the petit jury

stage has the same effect on the function of the jury as

systematic exclusion from the pool or the venire is an

argument that affirmative steps have to be taken to pro-

duce cross-sectional juries.

The parallel argument, that peremptory excusal of a

group in an individual case results in public perception

of unfairness to the same extent as systematic exclusion

from the pool or the venire (Pet. Br. at 14), is defective

for the same reasons. It is doubtful that public concern

would be expressed over the composition of the jury in

the first case described above, but not the second. A

priori exclusion of any distinctive group, such as that in-

volved in Taylor, casts a cloud over the entire system,

but on a case-by-case basis, perceptions turn not only on

who is included on the jury but on who the other partici-

pants in the case are. However, the rule of Batson pro-

tects the integrity of the individual case by prohibiting

the use of peremptory challenges to exclude members of

a cognizable racial group te which the defendant belongs

solely because of the shared characteristic.

The argument that any procedure which may conflict

with the opportunity provided by the process of the ran-

dom draw to achieve cross-sectional representation vio-

lates the Sixth Amendment (Pet. Br. at 11-12), is unten-

able. Ballew, supra, is cited in support of this argument,

but Ballew does not stand for that proposition. Ballew

teaches that jury size has consequences for the function

the jury is intended to perform, and there is a point below

which the impairment to that function takes on constitu-

tional significance. “This line-drawing process, ‘although

essential, cannot be wholly satisfactory, for it requires at-

taching consequences to events which, when they lie very

~23_

near the line, actually differ very little.’ ” Burch, 441 U.S.

at 138, quoting Duncan, 391 U.S. at 161. Everything said

in Ballew about the impact of_the five-person jury on the

opportunity for cross-sectional representation might just

as easily apply to a reduction from 12 to six, because it

is obvious that a six-person jury presents much less of an

opportunity for cross-sectional representation than a jury

of 12, but the six-person jury was approved in Williams.

Also, a non-unanimous 12-person jury may reduce the

force of those minority voices which are present on the

petit jury, to the detriment of cross-sectional values, but

that does not make it unconstitutional. Apodaca, supra.

Thus, Williams and Apodaca suggest that cross-sectional

values, while important, are not always paramount. It is

therefore necessary to examine the importance to the jury

system of the peremptory challenge, and the impact peti-

tioner’s proposed extension would have on it.

B. Extension Of The Cross-Section Requirement Would

Destroy The Value Of The Peremptory Challenge And

Seriously Undermine The Ability Of Both Sides To

Select A Fair And Impartial Jury.

The discussion which follows proceeds from two assump-

tions about the cross-section principle: that if it is ex-

tended to the petit jury selection stage, the considera-

tions which define what a cognizable group is would be

the same as those used when the jury pool or venire is

examined; and-that it would operate to restrict a defen-

dant’s use of peremptory challenges as well as the

prosecution’s.

The first assumption has not been uniformly accepted

by the courts that have endorsed the extension argument.

Taylor cautions that what groups can be considered

cognizable may fluctuate depending on time and place, 419

U.S. at 537, and in Duren v. Missouri, 439 U.S. 357

alii

(1979), the Court said that a group is cognizable if its

members are sufficiently numerous within the communi-

ty and distinct from other well-defined groups. Jd. at 364.

These are questions of fact, Hernandez v. Texas, 347 U.S.

475, 478 (1954), the resolution of which may require an

extensive evidentiary hearing. See, e.g., Willis v. Zant,

720 F.2d at 1216-17. However, the courts applying the

cross-section requirement at the petit jury selection stage

have generally treated cognizability as a question of law,

and have arbitrarily limited those groups considered

cognizable. See Fields, 732 P.2d at 1153-54, n.15, and

Soares, 387 N.E.2d at 515-516 and n.n. 29, 33 (cognizability

defined only by race, gender, religion, and national origin);

Rilzy, 496 A.2d at 1012 (limited to race); McCray, 750

F.2d at 1131, and Neil, 457 So.2d at 487 (race the only

defining characteristic discussed, and no subsequent au-

thority dealing with groups other than racial groups.)* No

valid reason is given for why this should be so.

The second assumption has been accepted by four of the

eight jurisdictions that apply the cross-section principle

to petit jury selection. Booker, 775 F.2d at 772; Neil, 457

So.2d at 487; Soares, 387 N.E.2d at 517, n.35; Wheeler,

588 P.2d at 765, n.29.° If such an extension, and the at-

tendant restrictions on the use of peremptory challenges,

is necessary to insure a jury which is fair and gives the

8 It is questionable whether ro can A nang sor igh

tate applying cross-section principles to petit Jury selection.

Kibler “4 State, 501 So.2d 76 (Fla. App. 1987), it was held that

white defendants lack standing to object to the peremptory ex-

cusal of blacks, and this makes the Florida rule more ay

resemble one based on equal protection rather than Sixth Amend-

ment principles.

9 In the other jurisdictions, the question of restricting a defen-

dant’s challenges was either not discussed (McCray; Riley), or not

resolved (Fields, 732 P.2d at 1156, n.19; Gilmore, 511 A.2d at 1168,

n.6).

appearance of fairness, then the restrictions must apply

to all. Booker, 775 F.2d at 772. “Society also has a right

to a fair trial.”” Fay, 332 U.S. at 288.

As did the State in Batson, respondents concede that

the Constitution does not guarantee a right to peremptory

challenges, and that Swain v. Alabama, 380 U.S. 202

(1965) recognized that their use is subject to the stric-

tures of the Equal Protection Clause. However, the argu-

ment that restrictions on their use “will eviscerate the

fair trial values served by the peremptory challenge”,

which was rejected in Batson, 476 U.S. at 98, carries con-

siderably more force here then it did in the equal prc-

tection context. Batson carefully limited the opportunity

to raise objections to the use of peremptory challenges

to those situations in which the excluded group is “a

cognizable racial group” of which the defendant is also

a member. 476 U.S. at 96. Under a cross-section analysis,

there is no requirement that the defendant be a member

of the excluded group, nor must the excluded group be

“a cognizable racial group.” The types of groups that

might be considered cognizable for cross-section purposes

is potentialiy limitless, depending only on sufficient num-

bers and distinctiveness in a given place at a given time,

and may include groups defined by age, see Annot., 62

ALR 4th 859 (1988), or by ecc:omic, social, political, or

occupational status, religious affi! ytion, or geographic loca-

tion, see Thiel, 328 U.S. at 220, as well as groups defined

by race, gender, or national origin. McCree, 476 U.S. at

175. Thus, extension of the cross-section requirement would

limit the peremptory challenge to an infinitely greater de-

gree than does the Equal Protection Clause, and it would

limit the defendant as well as the prosecution. Indeed,

it would prohibit the use of peremptory challenges by

either side for all but frivolous reasons or the most palpa-

ble manifestations of individual bias.

—26—

The history of the peremptory challenge, and its contri-

bution to the overall fairness of the jury system was re-

counted at length in Swain, 380 U.S. at 212-221, and de-

spite the limited restrictions imposed on its use in Batson,

this Court continues to recognize that “the peremptory

challenge occupies an important position in our trial pro-

cedures. ..”” 476 U.S. at 98. It allows for the elimination

of extremes of partiality at both ends of the spectrum,

and insures a jury each of whose members is considered

by both parties to be most able to render a fair and just

verdict. When group membership correlates with partiality

for purposes of the issues involved in a particular case,

members of that group will be clustered at one end of

the spectrum of partiality and the peremptory challenges

used by one side or the other are likely to be directed

to some degree at that group. In such a case, rigid adher-

ence to the principle of cross-sectionalism disserves the

core guarantee of the Sixth Amendment—an impartial

jury—while the peremptory challenge promotes it. Thus,

restricting the use of peremptory challenges .n the name

of cross-sectionalism destroys the value of the challenge

and seriously impairs the ability of both sides to select

an impartial jury.

C. Extension Of The Cross-Section Requirement Is Un-

workable Because No Principied And Practical Standard

Has Been Proposed.

In McCree, supra, this Court said that ‘‘an extension

of the fair cross-section requirement to petit juries would

be unworkable and unsound. . .” 476 U.S. at 174. Never-

theless, petitioner argues that Duren, supra, a case de-

cided seven years before McCree, supplies a standard

which can be adapted for purposes of applying the cross-

section requirement to petit juries. However, the stan-

dard proposed by petitioner is inconsistent with the stan-

dard proposed by amicus The Lawyers’ Committee For

—27—

Civil Rights Under Law; both are inconsistent with the

standard adopted in Wheeler; and none of these standards

provides a principled and practical approach.

Petitioner proposes that a prima facie violation of the

Sixth Amendment can be established by showing 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 prose-

cutor’s use of his peremptory challenges.

(Pet. Br. at 15) This is, almost verbatim, the standard es-

tablished in Duren, the only differences being the substi-

tution of “the petit jury” for “venires from which juries

are selected” in the second prong, and “the prosecutor’s

use of his peremptory challenges” for “systematic exclu-

sion of the group in the jury-selection process” in the

third. See 439 U.S. at 364.

The failure of this standard to provide a coherent and

internally consistent guide for purposes of examining petit

jury composition stems from its retention of the propor-

tionality component of the Duren standard. At issue in

Duren was a statute allowing women to opt out of jury

service if they did not wish to be called, a practice which

resulted in jury venires averaging less than 15% female

in the county where Duren was tried, even though women

constituted more than 5u% of the population of the county.

To make out a prima facie case, it was necessary to es-

tablish that women were not proportionately represented

on venires over a period of time, thus showing systematic

exclusion. In other words, the proportionality component

of the Duren standard is inextricabiy bound up with the

need to show that the exclusion was “systematic”, i.e.,

—~28—

“inherent in the particular jury-selection process utilized”’,

id. at 366, rather than the result of a random draw that

produced an aberrant venire in an individual case. Ex-

tending the cross-section requiremcnt to the petit jury

necessarily entails drevping the requirement that the ex-

clusion be ‘‘systematic’’, but retaining the proportional-

ity element in that context leads to absurd results.

First, it is clear from the standard proposed by peti-

tioner that no objection to the use of peremptory chal-

lenges can be raised until the selection of the jury is com-

plete, because it is only then that the second prong of

his standard—“representation of [a] group on the petit

jury is not fair and reasonable in relation to the number

of such persons in the community”—can be evaluated. One

cannot know if a group is underrepresented on the petit

jury until the composition of the petit jury is known. Sec-

ond, if the purpose of extending the cross-section require-

ment is to eliminate the use of any peremptory challenges

against members of a cognizable group solely on the basis

of group membership rather than on an individualized in-

dication of bias, see Booker, 775 F.2d at 771; McCray, 750

F.2d at 1131; Soares, 387 N.E.2d at 515; Wheeler, 583

P.2d at 760-761, then petitioner’s standard clearly does

not serve that purpose. If the members of a distinctive

group make up 20% of the general population of the com-

munity, and two members of the group are included on

the petit jury, then the group is not underrepresented,

and the second prong of the standard cannot be estab-

lished. Thus, no prima facie violation of the cross-section

requirement could be shown, even if the group was over-

repre‘ °nted on the venire and the prosecutor, with ten

percaptory challenges, used all of them on other members

of the group, freely admitting that group membership was

the reason. This suggests one of two things, both of which

are fatal to the extension argument. Either some, but not

—29_

all, group-based peremptory challenges are permissible,

in which case the major premise of the extension argu-

ment as set forth in the cases which adopt it is false; or

the real aim of petitioner’s position is to acquire a right

to a petit jury of a particular composition, consisting of

a proportionate number of jurors who are members of one

or more groups he deems partial to him, which cannot

be abridged unless there is a compelling justification. This

Court has repeatedly and expressly refused to confer such

a right. Batson, 476 U.S. at 86, n. 6; Taylor, 419 U.S.

at 538.

The standard proposed by amicus The Lawyers’ Com-

mittee For Civil Rights Under Law differs from that pro-

posed by petitioner in several significant respects, but is

equally ill-suited to serve cross-sectionalism. It calls for

comparison of the percentage of group members left on

the venire after the prosecutor’s peremptory challenges

have been exercised with the percentage of the group in

the general population, to determine whether there is rea-

sonable proportionality. As with petitioner’s focus on pre-

portionality, this suggests that it is permissible, up to a

point, to use peremptory challenges for group-based rea-

sons. Moreover, it does not call for examination of the

composition of the petit jury at any point, and consid-

erable litigation could take place over a prosecutor’s use

of peremptory challenges to “exclude” a group which may

actually have been substantially overrepresented on the

petit jury finally selected in comparison to its numbers

in the community. Also, it eppears that amicus would

recognize as “cognizable” only those groups defined by

race (Br. for Lawyers’ Committee at 12-14), while peti-

tioner’s proposed standard contains no such limitation.

The standards proposed by petitioner and amicus The

Lawyers’ Committee not only differ from each other, both

differ substantially from the standard adopted in Wheeler

- =

and used in the other jurisdictions purportedly applying

cross-section principles to the petit jury selection stage.

Under Wheeler, a prima facie case of a violation of the

cross-section requirement has two components, beyond

making a record as to the group identity of the venire-

persons: a party must show “that the persons excluded

are members of a cognizable group within the meaning

of the representative cross-section rule”; and “from the

circumstances of the case he must show a strong likelihood

that such persons are being challenged because of their

group association rather than because of any specific bias. |

583 P.2d at 764. Although this standard avoids the pit-

fall of including a proportionality element, it creates other

mischief. In People v. Snow, 44 Cal.3d 216, 242 Cal. Rptr.

477, 746 P.2d 452 (1987), the defendant, a black man, was

tried by a 12-person jury which included two blacks. There

is no indication as to how many blacks were on the venire

or how large a group they were in the community, but

it was shown that the prosecutor used six of the 16 alloted

peremptory challenges to excuse blacks. Because the pros-

ecutor had not satisfactorily explained his use of peremp-

tory challenges, the California Supreme Court found that

a violation of the cross-section requirement had been

shown, and it reversed the conviction. 746 P.2d at 456-458.

The court held that the «<cusal of any members of a cog-

nizable group violates Wheeler, whether or not the jury

contains other members of that group, and even if the

group is represented on the jury in direct proportion to

its numbers in the community. 746 P.2d at 457.

As applied in Snow, the Wheeler standard is indistin-

guishable from the equal protection analysis employed in

Batson. This lends support to the observation of Judge

Ripple, concurring in the judgment below, that in the time

between Swain and Batson “the sixth amendment analy-

sis was, I respectfully suggest, simply an elliptical way for

- =

the lower courts to avoid the precedential effect of Swain.”

(J.A. at 37)

The problem of formulating a standard for implement-

ing an extension of the cross-section requirement to the

petit jury selection stage is that no standard remains true

to cross-section principles. The premise that is essential

to the courts that have adopted the extension argument

is that peremptory challenges may never be used to ex-

clude members of a distinct group based solely on group

affiliation. If proportionality is made an element of the

standard, then the premise is proven false because the

standard does nothing to remedy even blatantly group-

based challenges once minimum proportional representa-

tion is achieved. However, if proportionality is irrelevant,

then a remedy exists for a single group-based challenge,

even if the jury finally chosen is a perfect mirror of the

community, and the remedy is reversal of the conviction

in the name of cross-sectionalism. Thus, extension of the

cross-section requirement to the petit jury is theoretical-

ly unsound and practically unworkable, and the judgment

of the Court of Appeals should be affirmed.

Il.

FOR PURPOSES OF THE RETROACTIVITY DOCTRINE,

THE DATE OF THE ANNOUNCEMENT OF A NEW RULE

OF CONSTITUTIONAL LAW IS THE ONLY APPROPRI-

ATE WATERSHED, AND THE RULE OF BATSON v.

KENTUCKY SHOULD NOT BE APPLIED RETROACTIVE-

LY TO CASES IN WHICH THE CONVICTION BECAME

FINAL PRIOR TO THE DATE OF THE DECISION.

In its relatively brief history, the retroactivity doctrine

has been a subject of considerable debate among the mem-

bers of this Court, and it has recently undergone consid-

erable change. However, at least since Linkletter v.

Walker, 381 U.S. 618 (1965), two aspects of this doctrine

—32—

have remained constant, and have never been questioned.

The first is that when giving retroactive effect to a new

rule of constitutional law, the date of the announcement

of the rule is the watershed event, and not some event oc-

curring prior to the rendition of judgment. The second

is that what Justice Harian called the Blackstonian theory—

“that the law should be taker to have always been what it

is said to mean at a later time’, Mackey v. United States,

401 U.S. 667, 677 (1971) (Harlan, J., dissenting)—is not viable.

It is these principles which petitioner calls into question in

this case.

A. The Denial Of Certiorari In McCray v. New York Neither

Foreshadowed The Decision In Batson v. Kentucky Nor

Destreved The Precedential Effect Of Swain v. Alabama.

This Court denied certiorari in McCray v. New York, 461

U.S. 961 (1983) on May 31, 1983, four months before peti-

tioner’s conviction became final upon the completion of direct

review. McCray sought relief on grounds that the prosecutor

in his case used peremptory challenges to exclude all blacks

and Hispanics from the jury, alleging violations of equal pro-

tection and the Sixth Amendment. See McCray v. New York,

51 U.S.L.W. 3740 (U.S. April 12, 1983) (No. 82-1381). Justice

Stevens, joined by Justices Blackmun and Powell, filed an

opinion respecting the denial of certiorari, noting the im-

portance of the issues raised, but expressing a preference

“to allow the States to serve as laboratories in which the

issue receives further study before it is addressed by this

Court.” 471 U.S. at 963. Justice Marshall, joined by Justice

Brennan, dissented from the denial of certiorari.

Three years later, this Court decided Batson v. Kentucky,

476 U.S. 79 (1986), and it subsequently held that the rule

of Batson was to be given retroactive effect to all cases

pending on direct review “when Batson was decided”,

Griffith v. Kentucky, 107 S.Ct. 708, 710 (1987), but not

- =

to “convictions that became final before our decision [in

Batson] was announced.” Allen v. Hardy, 106 S.Ct. 2878,

2880 (1986) (per curiam). Petitioner’s conviction became

final before the decision in Batson was announced, but

he says that retroactive application in accord with Griffith

should be extended to cases like his, pending on direct

review when certiorari was denied in McCray. He argues

that the observations of three Justices regarding the im-

portance of the issues presented by McCray’s petition,

coupled with the dissenting opinions of two Justices, in-

dicated that a majority of this Court was interested in

reexamining Swain v. Alabama, 380 U.S. 202 (1965), and

that this had the effect of destroying the precedential

force of Swain. (Pet. Br. at 23-26)

The contention that Swain was made a dead letter by

the opinions accompanying the denial of certiorari in Mc-

Cray is wrong for several reasons. The opinion of Justice

Stevens notes that two state courts had scrutinized the

use of peremptory challenges in individual cases by rely-

ing on Sixth Amendment principles, 461 U.S. at 962, n.*,

and encourages “the various States”, id. at 963 (emphasis

added), to serve as laboratories. This suggests an interest

not in reexamining the equal protection holding of Swain,

but in the analysis of Sixth Amendment principles de-

veloped after Swain. Because of its reference to “the

various States”, the opinion does not imply that the lower

federal courts should be free to reinterpret the Equal Pro-

tection Clause.

Similarly, the dissent in McCray focuses on Sixth Amend-

ment principles, and although critical of Swain, does not

perforce advocate overturning it. The dissent takes the

view that the developments in Sixth Amendment jurispru-

dence after Swain provide a different constitutional basis

for reaching a different result. 461 U.S. at 965-970. More-

over, all of the state courts that departed from Swain

————_

—34—

did so on the basis of jury trial provisions in their state

constitutions, and they referred to state equal protection

guarantees only to define cognizable groups. Even the two

federal circuits that accepted the invitation to serve as

laboratories reaffirmed the continued vitality of Swain as

the prevailing equal protection doctrine. Booker v. Jabe,

775 F.2d 762, 767 (6th Cir. 1985), vacated, 106 S.Ct. 3289,

opinion reinstated 801 F.2d 871 (6th Cir. 1986), cert.

denied, 107 S.Ct. 910 (1987); McCray v. Abrams, 750 F.2d

1113, 1123-24 (2nd Cir. 1984), vacated, 106 S.Ct. 3289

(1986). Petitioner says that after the denial of certiorari

in McCray, no lawyer worthy of the name could rely with

confidence o1: the continued vitality. of Swain. (Pet. Br.

at 25) In fact, between McCray and Batson, not even the

courts that were most critical of Swain believed that it

was not the dominant equal protection precedent.

The question of retroactivity arises only when a deci-

sion represents a significant departure from prior prece-

dent. Batson was “an explicit and substantial break with

prior precedent”, Allen, 106 S.Ct. at 2880, overruling the

key portion of Swain. To accept the proposition that such

a momentous event as this Court overruling one of its

prior decisions was so clearly foretold in the nonbinding

opinions expressed on the denial of certiorari three years

earlier is to make a greater precedent of McCray than

Batson. For purposes of the retroactivity doctrine, the

announcement of a new rule of constitutional law by this

Court must always be considered the main event.

Petitioner also makes a separate argument that retro-

active application of Batson to cases in which the convic-

tion became final prior to the decision, but after the denial

certiorari in McCray, is not inconsistent with Allen. (Pet.

Br. at 26-29) Griffith and Allen divide the cases into two

categories for purposes of Batson retroactivity: cases in

which the conviction became final either before or after

—35—

the decision. Petitioner appears to be saying that a third

category should be created, consisting of cases in which

the conviction became final in the time between McCray

and Batson, and that, without disturbing either Griffith

or Allen, retroactivity for this third category may be sepa-

rately considered. He then invokes the three-part Link-

letter analysis. This argument is confusing, because it sug-

gests that while McCray did not destroy the preceden-

tial effect of Swain, thereby making the proposed third

category entitled to the benefit of Batson through Griffith,

McCray should still be given some significance for retro-

activity purposes. Petitioner does not say why. Moreover,

Allen applied the Linkletter test and found that, for cases

in which the conviction became final prior to Batson,

retroactive application was unwarranted. Petitioner pre-

sents no reason why the Linkletter analysis should yield

a different result depending on how long before Batson

the conviction became final.

B. Retroactive Application Of Batson To Cases In Which

The Conviction Became Final Prior To The Decision Is

Unwarranted, Regardless Of Whether The Harlan Ap-

proach Or The Three-Part Linkletter Test Is Applied.

In his now famous dissents in Mackey v. United States,

401 U.S. 667 (1971) and Desist v. United States, 394 U.S.

244 (1969), Justice Harlan was critical of the approach to

the question of retroactivity taken by the Court in Link-

letter, and further developed in Stovall v. Denno, 388 U.S.

293 (1967). Under Linkletter and Stovall, the question of

whether a new rule of constitutional law was to be given

retroactive effect was answered on a case-by-case basis,

by looking to the purpose of the new rule, the extent of

reliance on the old standard, and the impact retroactive

application would have on the administration of justice.

Stovall, 388 U.S. at 297. In Justice Harlan’s view, this

led to ad hoc and inconsistent decisions, and deviated from

= =

the correct model of judicial review. He advocated a di-

chotomy between direct and collateral review, whereby

a new rule of law announced on direct review would apply

to all similarly situated cases, but, with two narrow ex-

ceptions, would not apply to cases on collateral review

at the time of the decision. Application of the new rule

to cases where the conviction had previously become final

was unjustifiable, according to Justice Harlan, because the

proper function of collateral review was limited to testing

the validity of the judgment under the standards prevail-

ing at the time of the conviction, and because the interests

of finality and comity weighed against expanding the role

of habeas corpus. Mackey, 401 U.S. at 681-693 (Harlan,

J., dissenting): Desist, 394 U.S. at 260-269 (Harlan, J., dis-

senting).

The first part of Justice Harlan’s analysis, requiring new

rules to be applied to all non-final cases, gained accept-

ance gradually. It was applied only to Fourth Amendment

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

then to Fifth Amendment cases in Shea v. Louisiana, 450

U.S. 51 (1985), and finally to all cases in Griffith. The

Court has yet to state whether it will adopt the second

part of the Harlan approach, see Yates v. Aiken, 108 S.Ct.

534, 537 (1988), and there remains much resistance to it.

See Griffith, 107 S.Ct. at 717-719 (White, J., dissenting);

Shea, 470 U.S. at 61-67 (White, J., dissenting); Johnson,

457 U.S. at 564-568 (White, J., dissenting).

Citing the dissenting opinions in Shea and Johnson, peti-

tioner argues that there should be no distinction for retro-

activity purposes between direct and collateral review, and

that all new constitutional rules should always be fully

retroactive. (Pet. Br. at 30-32) The dissents in Shea and

Johnson, and in Griffith, do not support that view. They

advocate adherence to the Stovall test, and as this Court

held in Allen, Batson is not retroactive under the Stovall

—37—

test to cases like petitioner’s where the conviction became

final prior to the decision. Not since before Linkletter has

the view now propounded by petitioner been a part of

the retroactivity debate.

One of the exceptions to the rule of non-retroactivity

for cases on collateral review discussed by Justice Harlan

concerned the establishment of procedures that must be

said to be “ ‘implicit in the concept of ordered liberty.’ ”’

Mackey, 401 U.S. at 693 (Harlan, J., dissenting), quoting

Palko v. Connecticut, 302 U.S. 319, 325 (1937). In their

brief (at 16-18), amicus The Lawyers’ Committee For Civil

Rights Under Law invokes this exception, arguing that

racial discrimination is inimical to democratic principles,

and particularly so when it occurs within the judicial

system.

It is clear from the context that the phrase quoted in

Justice Harlan’s opinion was used in Palko to describe

those portions of the Bill of Rights which should be in-

corporated through the Fourteenth Amendment to apply

against the States. See U.S. at 323-325. It is equally clear

that when Justice Harlan invoked that phrase, he did not

intend for it to mean precisely the same thing it meant

to Justice Cardozo when he wrote it. Otherwise, Justice

Harlan’s view would have been that all new rules estab-

lished on Fourth, Fifth, or Sixth Amendment grounds

would be fully retroactive, and that is not the case. Justice

Harlan cited Gideon v. Wainwright, 372 U.S. 335 (1963)

aS an example of a new rule that would fit within this

exception. Gideon held that the States were bound to

observe the Sixth Amendment’s guarantee of counsel for

the accused, because it is « ssential to the fairness of the

trial and the ability of the accused to have his side of

the case heard. Jd. at 343-345. If the rule of Batson was

essential to the fairness of a jury trial, such that without

it the defendant's opportunity to present his case would

iin

be meaningless, then it would have been retroactive under

Stovall, because it would have been essential to the ac-

curacy of the fact-finding process. However, this Court

said in Allen that while Batson may serve to enhance ac-

curacy, the rule it establishes is not one that “ ‘goes to

the heart of the truthfinding function.’ ” Allen, 106 S.Ct.

at 2880, quoting Solem v. Stumes, 465 U.S. 638, 645

(1984).

Whether analyzed under the Stovall test or under the

views on retroactivity articulated by Justice Harlan, retro-

active application of Batson to review of convictions, like

petitioner’s, that became final before the decision is not

warranted. The judgment of the Court of Appeals should

therefore be affirmed.

Ill.

PROCEDURAL DEFAULT BARS CONSIDERATION OF

PETITIONER’S THIRD ARGUMENT; AND, IN AN INDI-

VIDUAL CASE, THE PEREMPTORY EXCUSAL OF

JURORS WHO ARE MEMBERS OF A COGNIZABLE

RACIAL GROUP TO WHICH THE DEFENDANT ALSO

BELONGS, IN THE BELIEF THAT SUCH JURORS WILL

BE SYMPATHETIC TO THE DEFENDANT BECAUSE OF

THE SHARED GROUP CHARACTERISTIC, DOES NOT

VIOLATE THE EQUAL PROTECTION CLAUSE AS CON-

STRUED IN SWAIN v. ALABAMA.

In his third argument, petitioner contends that a viola-

tion of the Equal Protection Clause as construed in Swain

v. Alabama, 380 U.S. 202 (1965) may be established in

an individual case if the prosecutor volunteers explana-

tions for his exercise of peremptory challenges, and the

explanations are proven to be a pretext. Consideration

of this claim is barred by procedural default, because peti-

tioner did not raise it in the Illinois Appellate Court, and

that court expressed no view on this interpretation of

Swain.

= Paes TS MD OSH

Moreover, on the merits, petitioner’s argument is based

on a misinterpretation of Swain. Petitioner fails to dis-

tinguish between the situation where the prosecutor states

that his excusal of jurors belonging to a cognizable racial

group is based on his belief that such persons are un-

unqualified to serve as jurors in any case, and the situa-

tion where the reason is that such persons are likely to

be partial to the defendant in a particular case because

the defendant is also a member of the group. In the first

situation, the evidentiary burden imposed in Swain is

satisfied by the prosecutor’s admission, but Swain does

not prohibit the use of peremptory challenges based on

group affiliation if the prosecutor believes group affilia-

tion is related to the outcome of the trial.

A. The Argument That The Equal Protection Clause As

Construed In Swain Can Be Violated By The Use Of

Peremptory Challenges In An Individual Case Was Not

Raised In Or Decided By The Illinois Appellate Court.

The failure to raise a claim on direct appeal constitutes

a procedural default which bars habeas corpus review to

the same extent as the failure to object at trial. Murray

v. Carrier, 106 S.Ct. 2639, 2648 (1986). When his case was

before the Illinois Appellate Court, petitioner argued that

the manner in which the prosecutor exercised peremptory

challenges deprived him of a fair trial and an impartial

jury under the Sixth and Fourteenth Amendments, and

under the Illinois Constitution, and that the court should

adopt the rationale of Commonwealth v. Soares, 377 Mass.

461, 387 N.E.2d 499, cert. denied, 444 U.S. 881 (1979) and

People v. Wheeler, 22 Cal.3d 258, 148 Cal. Rptr. 890, 583

P.2d 748 (1978) and apply cross-section principles. His only

reference to Swain was to distinguish its analytical frame-

work from the one he intended to invoke. (Appellant’s Br.

at 73-83; Appellant’s reply Br. at 7) No effort was made

to persuade the court to read Swain in a certain way,

—40—

and to find an impermissible use of peremptory challenges

under the equal protection analysis of Swain. In its rul-

ing, the court reviewed the facts, People v. Teague, 108

Ill. App. 3d 891, 439 N.E.2d 1066, 1069-70 (1st Dist. 1982),

cert. denied, 464 U.S. 867 (1983), discussed the cross-

section cases on which petitioner relied, 439 N.E.2d at

1070, and declined to follow that approach. 439 N.E.2d

at 1070-71. Accordingly, the Court of Appeals found that

any argument based on Swain had been procedurally

defaulted. (J.A. 17, n.6)

Petitioner admits that his present argument was not pre-

sented to the state appellate court, but he says that the

court resolved the issue as though he had raised it. (Pet.

Br. at 39) The applicability of Swain when the prosecutor

volunteers an explanation for his challenges is an issue

that has split the circuits. Compare Weathersby v. Morris,

708 F.2d 1493, 1496 (9th Cir. 1983), cert. denied, 464 U.S.

1046 (1984) (applying Swain) with United States v. New-

nan, 54¢ F.2d 240, 249 (2nd Cir. 1977) (holding Swain

inapplicable). It is extravagent to assert that the appellate

court’s mere citation of Swain, followed by a statement

of what is usually understood to be its holding, see 439

N.E.2d at 1070, constitutes a resolution of a question con-

cerning the proper interpretation of Swain that ~’as not

even posed. Petitioner says that the appellate court re-

jected his claim because it found Swain dispositive. (Pet.

Br. at 39) In fact, it did not. It found dispositive of the

issue presented its own decision in an earlier case, and

the decisions of the other jurisdictions, rejecting the ap-

plication of cross-section principles to petit jury selection

procedures. Petitioner’s third argument is therefore barred

by procedural default.

- Petitioner also argues that, although he did not raise

his claim concerning the proper construction of Swain in

state court, respondents may not rely on procedural de-

SA OPS 2.

fault as a defense to that claim because they did not urge

it below. (Pet. Br. at 38) The habeas corpus petition filed

in the district court alleged that the circumstances of the

case gave rise to a violation of petitioner’s Sixth and

Fourteenth Amendment rights (R. 1, pp. 4-5), and the

accompanying brief presented only one argument, seek-

ing adoption of the cross-section analysis. Respondents’

memorandum in support of their mction for summary judg-

ment addressed the impropriety of adopting petitioner’s

cross-section argument, and further asserted that no equal

protection violation could be shown under Swain because

the record contained no evidence outside the facts of peti-

tioner’s case. (R. 14) In his cross-motion, petitioner re-

sponded to the arguments against adopting a cross-section

analysis, and in one paragraph, cited Weathersby as

demonstrating “{aJnother method by which this Court can

find that petitioner has demonstrated that his constitu-

tional rights have been violated...” (R. 20, p. 5) The

Equal Protection Clause was not mentionea. Respondents,

in reply, distinguished Weathersby on its facts. (R. 22, p.

4) On appeal, petitioner continued to rely on a cross-sec-

tion analysis. The question of whether an equal protec-

tion claim had been procedurally defaulted was addressed

in supplemental memoranda filed by the parties, after

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

Petitioner cites Granberry v. Greer, 107 S.Ct. 1671

(1987), which holds that the failure to raise the defense

of exhaustion in a timely fashion may or may not preclude

reliance on it at a later stage of the proceedings, depend-

ing on how the interests of comity and federalism would

be best served. Respondents did nct fail to raise pro-

cedural defauit in a timely fashion. Petitioner expressly

disavowed reliance on equal protection in state court, did

not raise it in his petition or his opening brief, and re-

ferred to it only obliquely in his cross-motion. The only

—42—

point during the habeas proceedings at which petitioner

clearly declared his intent to rely on equal protection as

a basis for relief independent of his cross-section argu-

ment was after the decision in Batson. Respondents then

promptly answered that procedural default barred the

claim, and the Court of Appeals agreed. Thus, respon-

dents’ present procedural default argument has been prop-

erly preserved. Cf., Engle v. Isaac, 456 U.S. 107, 124,

n. 26 (1982).

B. The Peremptory Excusal Of Jurors Who Are Members

Of A Cognizable Racial Group To Which The Defendant

Also Belongs, In The Belief That They Will Be Partial

To The Defendant, Is Permitted By Swain.

The predominant view of Swain is that it permits the

prosecutor to take the race of prospective jurors into ac-

count when exercising peremptory challenges, and to eXx-

cuse those who are the same race as the defendant in

the belief that they are likely to be partial to him. United

States v. Clark, 737 F.2d 679, 682 (7th Cir. 1984); United

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

denied, 469 U.S. 1024 (1984); United States v. Newman,

549 F.2d 240, 249 (2nd Cir. 1977); Cunningham v. Estelle,

536 F.2d 82, 84 (5th Cir. 1976); United States v. Carter,

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

961 (1976). Two courts have taken a contrary view, stating

that such use of peremptory challenges is improper even

under Swain, and that constitutional error may be shown

on the record of an individual case if the prosecutor volun-

teers an explanation which is determined to be pretextual.

Garrett v. Morris, 815 F.2d 509, 511 (8th Cir.), cert.

denied, 108 S.Ct. 223 (1987); Weathersby v. Morris, 708

F.2d 1493, 1496 (9th Cir. 1983), cert. denied, 464 U.S. 1046

(1984).

In part II of its opinion in Swain, this Court expressly

recognized that peremptory challenges are

... frequently exercised on grounds normally thought

irrelevant to judicial proceedings or official action,

namely, the race, religion, nationality, occupation or

affiliations of people summoned for jury duty. For

the question a prosecutor or defense counsel must

decide is not whether a juror of a particular race or

nationality is in fact partial, but whether one from a

different group is less likely to be. ... Hence venire-

men are not always judged as individuals for the pur-

pose of exercising peremptory challenges. Rather

they are challenged in light of the limited knowledge

counsel has of them, which may include their group

affiliations, in the context of the case to be tried.

380 U.S. at 220-221 (footnotes omitted) (emphasis added).

Knowing that this was the practice, the Court did not

disapprove of it. It stated that “{wlith these considera-

tions in mind, we cannot hold that the striking of Negroes

in a particular case is a denial of equal protection of the

laws.” Id. at 221.

In part III of its opinion, the Court distinguished the

approved practice from a situation that might give rise

to an equal protection violation

We have decided that it is permissible to insulate

from inquiry the removal of Negroes from a particu-

lar jury on the assumption that the prosecutor is act-

ing on acceptable considerations related to the case

he is trying, the particular defendant involved and

the particular crime charged. But when the prose-

cutor in a county, in case after case, whatever the

circumstances, whatever the crime and whoever the

defendant or the victim may be, is responsible for

the removal of Negroes who have been selected as

qualified jurors by the jury commissioners and who

have survived challenges for cause, with the result

that no Negroes ever serve on petit juries, the Four-

teenth Amendment claim takes on added significance.

... In these circumstances, giving even the widest

leeway to the operation of irrational but trial-related .

—44—

suspicions and antagonisms, it would appear that the

urposes of the peremptory challenge are being per-

verted. If the State has not seen fit to leave a single

Negro on any jury in a criminal case, the presump-

tion protecting the prosecutor may well be overcome.

Such proof might support a reasonable inference that

Negroes are excluded from juries for reasons wholly

unrelated to the outcome of the particular case on

trial and that the peremptory system is being used

to deny the Negro the same right and opportunity

to participate in the administration of justice enjoyed

by the white population. These ends the peremptory

challenge is not designed to faciliate or justify.

id. at 223-224 (citation omitted) (emphasis added). What

the Court disapproved of in part III of the opinion was

the peremptory excusal of blacks in all cases in the belief

that blacks are unqualified to serve in ali cases, and it

distinguished this from the practice it sanctioned, name-

ly, the peremptory excusal of blacks in cases where, be-

cause of who the defendant or the victim was, the pres-

ence of blacks on the jury was believed to bear a rela-

tion to the outcome, even if a court might consider the

belief irrational. Even the dissent did net question the

analysis in part II of the major®y opinien. The position

of the dissent was that the petitiviier had satisfied the

burden discussed in part III:

The holding called for by this case, is that where as

here, a Negro defendant proves that Negroes consti-

tute a substantial segment of the population, that

Negroes are qualified to serve as jurors, and that

none or only a token number has served on juries

over an extended period of time, a prima facie case

of the exclusion of Negroes from juries is then made

out...

Id. at 244-245 (Goldberg, J., dissenting).

Nothing said in Batson puts a different gloss on Swain.

The majority opinion notes that the lower courts, “follow-

—45—

ing the teaching of Swain”, 476 U.S. at 92, have read

it to require proof of repeated peremptory excusal of

members of a group in case after case over a period of

time, but the Court did not say that this was an incor-

rect view of the holding in Swain. It said “we reject this

evidentiary formulation as inconsistent with standards that

have been developed since Swain for assessing a prima

facie case under the Equal Protection Clause.” Jd. at 93.

Similarly, the footnote in Justice White’s concurring opin-

ion, see 476 U.S. at 101, n.* (White, J., concurring), indi-

cates only that a prosecutor’s statement that he believed

blacks to be unqualified to serve as jurors in any case

would be enough to satisfy the evidentiary burden out-

lined in part III of the Swain opinion. Nothing in this

observation detracts from the statement in part II of the

Swain opinion that it is permissible to take race or other

group affiliation of prospective jurors into account when

exercising peremptory challenges if group affiliation is

believed to bear a relationship to the jurors’ perception

of the case on trial.

The prosecutor in this case did not say that he was per-

emptorily excusing blacks because he believed them to

be unqualified as jurors in any case. The stated reasons

were that some jurors “were of very young years” and

that ‘‘a balance of an equal number of men and women’’

was desired. (J.A. 3) Petitioner presents an elaborate argu-

ment in an effort to show that the stated reasons were

not the real reasons (Pet. Br. at 18-21), and he infers from

this that the real reason was that the challenged jurors,

like him, were black. Even assuming this to bk the case,

Swain permitted peremptory challenges to be exercised

for such reasons, and that is the crucial difference be-

tween Swain and Batson. Batson did not merely alter the

evidentiary burden outlined in part III of the Swain opin-

ion, it overruled the premise which was the foundation

—46—

of part II of the opinion, 2.e., that it is permissible to pre-

sume that black jurors will be sympathetic <o black defen-

dants and to exercise peremptory challenges on that basis.

Swain therefore provides no basis for finding a violation

of equal protection on the record in this case, and the

judgment of the Court of Appeals should be affirmed.

CONCLUSION

For all the foregoing “easons, respondents respectfully

request that the judgment of the United States Court of

Appeals be affirmed.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROBERT J. RUIZ

Solicitor General, State of Illinois

TERENCE M. MADSEN

DAVID E. BINDI *

MARCIA L. FRIEDL

Assistant Attorneys General

100 West Randolph Street, 12th Floor

Chicaro, ‘llinois 60601

- (312) 917-2239

Counsel for the Respondents

* Counsel of Record

Dated: July 1, 1988

No. 87-5259

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

FRANK DEAN TEAGUE,

Petitioner,

MICHAEL LANE, Director, Department of Corrections,

and MICHAEL O’LEAry, Warden, Stateville

Correctional Center,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

REPLY BRIEF

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 St., Suite 5-500

Chicago, Illinois 60601

(312) 917-5472

Attorneys For Petitioner

*Counsel of Record

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781) (301) sHi-H882

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. .... o.oo cc cc ccc ccc c cece iii

Mg cb ghon ea Geka cece Tikok icone caus. l

I. THE PROSECUTION’s Use Or THE PEREMPTORY

CHALLENGE To Dereat THE PossiBILity THAT

THE Petit Jury WILL REPRESENT A Fair Cross

SECTION Or THE CoMMUNITY VIOLATES THE

DEFENDANT'S SIXTH AMENDMENT RIGHT To A

FarR AND IMPARTIAL JURY. ................00.

A. No Constitutionally Significant Difference

Exists Between Selection Of Jurors For Jury

Pools And Venires And Selection Of Jurors For

DOE “ii ncehbGG5 ce ccannesckae cu:

B. No Inconsistency Exists Between The Goal Of

Selection Of Fair And Impartial Jurors Aad

Restriction Of Use Of The Peremptory Chal-

lenge To Exclude A Cognizable Group. ......

C. Petitioner's Proposed Standard For Determin-

ing Whether The Fair Cross-Section Require-

ment Has Been Violated Is Consistent With

The Duren Standard And Does Not Defeat The

Purpose Of The Requirement. .............

RETROACTIVE APPLICATION OF THE RULE OF

Batson Vv. Kentucky SHoulp Be ExteENDED AT

A MintmuM To THose DEFENDANTS WHOSE Con-

vroTions Were Not Fina WHEN CERTIORARI

Was Dentep IN McCray v. New York. .......

A. After McC ray, Swain Could Not Be J ustifiably

Relied On To Sanction A Prosecutor's Discrimi-

natory Use Of The Peremptory Challenge.

& Petitioner's Argument That New Rules Should

se Given Complete Retroactive Effect Is Not

Founded In Blackstonian Theory But In The

same Principles Which Persuade That Non-

Final Cases Benefit From A New Rule. .....

Table of Contents Continued

Page

Ill. Swamy v. AtasAmaA PeRMits A PROSECUTOR'S

VoOLUNTEERED 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

RACTIAL DISCRIMINATION. .......0000e0eeeees

A. Swain Did Not Hold The Assumption That

Black Jurors Are Unable To Fairly Judge Black

Defendants To Be An Acceptable Trial-Related

Consideration Justifying Peremptory Chal-

lenge Of Black Jurors Consistent With The

Fourteenth Amendment. ............--.5+:

B. The Illinois Appellate Court Held Swain

\fforded Petitioner No Basis For Relief From

te Comite ooockckcusneiucesweseeenes

C. Petitioner's Swain Claim Is Not Barred By

Procedural Default Where Respondents

Waived This Issue By Their Failure To Timely

Raise It In The District Court And Court Of

‘Appeals. ......... 2. cece ce ecceneceeeeenes

-—

iil

TABLE OF AUTHORITIES

Cases Page

Anaya v. Hanson, 781 F.2d 1 (1st Cir. 1986)........... 7

Ballew v. Georgia, 435 U.S. 223 (1978). .............4. 8,9

Barber v. Ponte, 772 F.2d 982 (1st Cir. 1985), cert. denied,

EE 7

Batson v. Kentucky, 476 U.S. 79 (1986).............. 2, 16

Duncan v. Louisiana, 391 U.S. 145 (1968) ............ 4

Duren v. Missouri, 439 U.S. 357 (1979). ........ 2,5, 10, 11

Glasser v. United States, 315 U.S. 60 (1941)........... 4

Hayes v. Missouri, 120 U.S. 68 (1887)................ 6

Lockhart v. McCree, 476 U.S. 162 (1986) ............. 7

Mackey v. United States, 401 U.S. 667 (1971) ......... 14

McCray v. New York, 461 U.S. 961 (1983)........... 12, 13

People v. Payne, 106 Ill.App.3d 1034, 436 N.E.2d 1046

(1st Dist. 1982), reversed, 99 Ill.2d 135, 457 N.E.2d

1202 (1983), cert. denied, 469 U.S. 1028........... 17

People v. —— 108 Ill. App.3d 891, 439 N. E.2d 1066 (1st

er ea see censcesece ias

Pw i Gece cccccececsess 4

Sands v. Cunningham, 617 F. . 155 >N

saaete <enelbad oe 7

Swain v. Alabama, 380 U.S. 202 (1965).............. 3, 15

Taylor v. Lowisiana, 419 U.S. 522 (1975). ........... 3,4,7

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946). ..... 2,4

United States v. Afferbach, 754 F.2d 866 (10th Cir. 1985),

ge i

United States v. Salamone, 800 F.2d 1216 (3rd Cir. 1986) 7

United States v. Test, 550 F.2d 577 (10th Cir. 1976)... .. 7

Vail v. Board of Education, 706 F.2d 1435 (7th Cir. 1983) tL

Wainwright v. Sykes, 483 U.S. Te (977)... 2... ee Ld

Williams v. Florida, 399 U.S. 89 (1970). .............. 9,9

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

ONION, SEO UD. TOT 2. ccc cece cscccesscens 18

ARGUMENT

I. THE PROSECUTION’S LSE 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 RIGHT TO A

FAIR AND IMPARTIAL JURY.

A. NoConstitutionally Significant Difference Exists

Between Selection Of Jurors For Jury Pools And

Venires And Selection Of Jurors For The Petit Jury.

Respondents contend a constitutionally significant dif-

ference exists between the process of establishing a jury

pool and selecting a venire to provide jurors for all cases,

and the process of selecting a petit jury from the venire to

try an individual case, such that a prior disqualification of

jurors based on group affiliation is intolerable in the for-

mer instaaces but acceptable in the latter. The focus at the

pool and venire stages being on the fitness of jurors to

serve in any case, whereas the focus at the petit jury stage

being on the ability of the jurors to be fair in the individual

case, the peremptory challenge of jurors based on their

membership in a cognizable group is permissible in

Respondents’ view whenever group membership corre-

lates with partiality for purposes of the pouce involved in

an individual case. From their perspectiye, the a prior

exclusion of black citizens from the jury pool or venire

would violate the Sixth Amendment fair cross-section

requirement, but challenge of black citizens peremptorily

based on their race would not, because the peremptory

challenge evidences the prosecutor’s judgment that the

excluded black jurors are unable to fairly and impartially

decide the issues in a particular case.

There is no distinction of substance between an a prior

disqualification of jurors based on their race for purposes

of selection of the jury pool or venire, which Respondents

agree is to be condemned, and the peremptory challenge

of jurors from a petit jury based on their race. Both

exclusions are equally reprehensible because in each

instance an a priori judgment is being made as to the

worthiness of the jurors as a class, separate and apart

from their individual ability and fitness to serve. Thiel v.

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

The stated legal underpinnning for Respondents argu-

ment is the “equal protection cases which led up to Taylor

[which] make clear that the exclusion of distinctive groups

from eligibility for jury service in any case is discrimi-

natory and pernicious in ways that the use of peremptory

challenges in an individual case is not.” (Resp. Br. 20)

Even were this interpretation of the Equal Protection

Clause correct,! Respondents’ argument is misfocused.

The claim at issue is founded in the Sixth Amendment, not

the Fourteenth.

An equal protection challenge is concerned with dis-

criminatory purpose, whereas a fair cross-section chal-

lenge is concerned with the disproportionate exclusion of

a distinctive group. Duren v. Missouri, 439 U.S. 357, 368

n. 26 (1979). Whether a brand of inferiority has been

affixed on jurors who are peremptorily challenged due to

their race is a separate question from whether a defend-

ant has been denied his right to a fair possibility of a cross-

sectional jury. If it is determined that a cognizable group

' Respondents do not identify their source for this distinction but

their assumption that the Equal Protection Clause would not be

offended by the peremptory challenge of black jurors based on the

judgment their race renders them unable to be fair in an individual

case is contrary to Batson v. Kentucky, 476 U.S. 79, 97 (1986), which

interprets the clause to forbid challenge of “black veniremen on the

assumption that they will be biased in a particular case simply

heeause the defendant is black.”

has been disproportionately excluded from a jury, the

State can justify this infringement of the Sixth Amend-

ment by showing attainment of a fair cross section to be

incompatible with a significant state interest. Taylor v.

Louisiana, 419 U.S. 522, 533-535 (1975). Proof of a fair

cross-section violation requires no demonstration of dis-

criminatory intent and the State’s explanation for its

exclusion of a cognizable group does not defeat the demon-

stration of a prima facie fair cross-section violation, but

merely justifies the failure to achieve a fair community

cross section if it qualifies as a significant state interest.

No inconsistency exists between exclusion of jurors on

the basis of race by peremptory challenge and the consti-

tutional concept of a jury trial, according to Respondents.

A jury from which the prosecutor has removed all black

jurors by peremptory challenge will serve its prophylactic

purpose because in making his charging decision a pros-

ecutor will not know that he will in fact try his case before

an all-white jury. (Resp. Br. 21) The threat of a fair and

impartial jury will not deter a prosecutor in the many

instances where he can be reasonably assured in advance

that his peremptory challenges are sufficient in number to

bar a minority from the jury.

The theoretical right to trial by jury from which a

cognizable group has not been affirmatively excluded

would not afford the accused the full protection intended

* Respondents overstate the weight of authority supporting their

arguments. (Resp. Br. 19 n.6 and 7) The cases they cite decline to find

use of the peremptory challenge to exclude a minority violated the

Sixth Amendment or their state constitutions because of a belief that

Swain v. Alabama, 380 U.S. 202 (1965) presented a fundamental

obstacle to any successful attack on the peremptory challenge in a

single case.

by the Sixth Amendment guarantee. The right to trial by

jury is intended to be a safeguard against the compliant,

biased or eccentric judge, as well as against the corrupt or

overzealous prosecutor. Duncan v. Louisiana, 391 U.S.

145, 156 (1968). The removal of a distinctive group by

peremptory challenge dilutes the quality of community

judgment on the jury, interfering with the ability of the

jury to perform this function, Taylor, 419 U.S. at 535, as

well as converting the jury into an organ of a special group

or class. Glasser v. United States, 315 U.S. 60 (1941).

Respondents believe that public concern for the integ-

rity of the criminal justice system is no greater where the

prosecution exercises its challenges so as to excluue black

jurors from an individual jury, than where an all-white

jury is selected as a result of random draw. Surely, there is

a difference in the public’s perception between an all-

white jury selected purely by chance and against the

prevailing odds and an all-white jury achieved because 1

governmental official in a very public forum has elimi-

nated prospective jurors because of the color of their skin.

In the former instance, a neutral formula has been

employed to achieve that unexpected result; in the latter,

a race-conscious formula is used to achieve a deliberate

perversion.”

‘It is not sufficient that the rule of Batson prevents exclusion of

jurors based on race where the defendant is himself a member of the

excluded group (Resp. Br. 22), because there are instances where the

prosecutor may seek exclusion of a group from a jury due to his

perception that that group will disfavor his case although defendant is

not himself a member of the excluded group. (Pet. Br. 9) Respondents

also incorrectly assume that the exclusion of black jurors has rele-

vance only for issues involving race, an assumption rejected in Peters

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

Respondents fail to recognize that acceptance of these

same arguments would result in rejection of the principle

that exclusion of a cognizable group from the jury poo! or

venire violates the Sixth Amendment. The process of

random draw and selection may result in an all-white

venire from which a petit jury is selected. However, it is

only where this discrepancy occurs consistently, rather

than occasionally, that a fair cross-section violation is

-monstrated because only then is it apparent the cause

of the underrepresentation is inherent in the particular

jury selection process utilized. Duren, 439 U.S. at 366.

The Sixth Amendment countenances that an unrepresen-

tative jury may result from the process of random selec-

tion but does ot tolerate unrepresentativeness caused by

a perversion of that process. Where perversion occurs,

whether by operation of a statutory exemption from the

jury pool or the exercise of the peremptory challenge, the

jury is not the embodiment of the democratic ideal and the

Sixth Amendment is violated. The impossibility of the

achievement of a truly representative jury in every

instance does not excuse the systematic and intentional

exclusion of a cognizable group from a jury. Thiel, 328

U.S. at 220.

In neither the petit jury nor the venire context does the

Sixth Amendment require tnat any affirmative step be

taken to ensure that the petit jury or the venire in each

instance mirrors the community. Petitioner contends only

that it bars any affirmative action which interferes with

the representative character of the jury resulting from

the process of random selection.

B. Inconsistency Exists Between The Goal Of Selec-

tion Of Fair And Impartial Jurors And The Restric-

tion Of Use Of The Peremptory Challenge To

Exclude A Cognizable Group.

Respondents concede that the peremptory challenge is

not constitutionally guaranteed but contend that recogni-

tion that the fair cross-section requirement limits the use

of the peremptory challenge would, even more than the

rule of Batson, disserve the core guarantee of the Sixth

Amendment—an impartial jury—that unfettered use of

the peremptory challenge would promote, because the

Sixth Amendment would limit both defense as well as

prosecution challenges* and potentially apply to a “lim-

itless” number of cognizable groups. (Resp. Br. 23-26).

The fundamental defect in Respondents’ argument is

their failure to recognize that if it were established in a

particular case that members of a cognizal le group were

actual] partial and could not be fair, or that a reasonable

basis existed to fear their partiality, a significant state

interest would exist which would justify elimination of the

group from the jury. The Sixth Ame~dment would not

interfere with “elimination of extr mex of partiality at

both ends of the spectrum,” (Resp. Br. 26) but would

prevent removal of members of a distinctive group on the

basis of a priori, irrational group-based judgments about

their partiality. The fair cross-section requirement guar-

antees, rather than interferes with, achievement of an

impartial jury. Respondents do not claim that the basis for

the exclusion of the black jurors in this case was other

than their common racial identity or that denial of their

right to challenge those excluded jurors would have inter-

fered with their ability to select a fair jury in this case.

Second, the specter raised by Respondents of a poten-

tially limitless number of cognizable groups existing at

* Whether the Sixth Amendment provides authority to restrict the

defense use of the peremptory challenge is an open question but

defense abuse of the challenge may be prohibited in the interest of

maintaining the balance of the scales between the defense and pros-

ecution. Hayes v. Missouri, 120 U.S. 681 (1887).

any one time and place is an exaggeration. Every identi-

fiable group is not cognizable for fair cross-section pur-

poses. The concept of distinctiveness is linked to the

purposes of the fair cross-section requirement such that

exclusion of the group from jury service must contravene

those purposes. Lockhart v. McCree, 476 U.S. 162, 174,

175 (1986). To establish cognizability courts have required

a showing of: (1) the presence of some quality which

defines and limits the group; (2) cohesiveness of attitudes,

ideas or experiences which distinguish the group from the

general social milieu; and (3) a community of interest

among the members of the group which may not be repre-

sented by other segments of society. United St..tes v. Test,

550 F.2d 577, 591 (10th Cir. 1976). The size of the group is

another factor considered. Taylor, 419 U.S. at 530.

Blacks, women and Mexican-Americans appear to be cog-

nizable groups. Lockhart, 766 U.S. at 175.°

A juror’s group membership would pose no obstacle to

his removal if the group of which he is a member did not

share such unique and distinctive attitudes or experiences

such that those perspectives could not be provided by

members of a different group. The appearance of unfair-

ness the fair cross-section requirement is designed to

protect against would not be created unless there were a

basis to believe the juror had been removed due to his

> Courts have declined to find cognizable: young adults, Barber v.

Poiite, 772 F.2d 982 (1st Cir. 1985), cert. denied, 475 U.S. 1050, NRA

members, United States v. Salamone, 800 F.2d 1216 (3rd Cir. 19886),

blue collar worke ’s and the less educated, Anaya v. Hanson, 781 F.2d

1 (Ist Cir. 1986), pe sons who choose not to register to vote, L’nited

States v. Afflerbach 754 F.2d 866 (10th Cir. 1985), cert. denied, 472

U.S. 1029, and those with lower incomes, recent residents and non-

homeowners. Sands v. Cunningham, 617 F.Supp. 1551 (D.C.N.H.

1985).

group identity rather than individual ability to serve.

Given the assimilating and mobile character of American

society, it is extremely unlikely that every group defined

by ethnicity, religious affiliation, economic or social sta-

tus, in each and every community at every time and place,

would qualify as distinctive, to the extent that removal of

a member of that group would deny the defendant the

benefit of the common-sense judgment of the community.

Respondents’ Brief creates the erroneous impression

that cross-sectional values have limited importance, sug-

gesting the fair cross-section requirement may not be

paramount to the State's interest in unfettered use of its

peremptory challenges. This impression results from

Respondents’ mistaken analysis of Williams v. Florida,

399 U.S. 78 (1970) and Ballew v. Georgia, 435 U.S. 223

(1978), which held a six-person but not a five-person jury

constitutionally permissible. (Resp. Br. 22, 23) Respond-

ents contend the line drawn between five and six-person

juries was largely arbitrary in that negative impact on the

opportunity for a cross-sectional jury is just as great

where a jury is reduced in size from twelve to six, as when

a jury is reduced from twelve to five. (Resp. Br. 23) Also,

the concern that a five-person jury would result in a

decreased opportunity for a representative jury ranked

only fourth among five factors which convinced the Court

in Ballew to hold the five-person jury constitutionally

inadequate. (Resp. Br. 17)

This Court articulated but did not rank the concerns

which determined its conclusion in Ballew. Because the

concerns expressed by the Court are interrelated it would

be impossible to assign a specific weight to each factor.

For instance, if the size of a jury interferes with the

opportunity for representation of minority groups, the

absence of minority groups will also have an impact on the

_—— re, pani

ability of the jury to engage in effective group deliberation

because the biases and prejudices of the jurors would not

be counterbalanced by minority viewpoint. Ballew, 435

U.S. at 232, 233. Moreover, in Williams the six-person

jury was not perceived as a threat to minority participa-

tion so long as arbitrary exclusion of cognizable groups

was impermissible. Williams, 399 U.S. at 102. In Ballew,

the Court learned from studies brought to its attention in

the interim that if a minority constituted 10% of the

community, 53.1% of randomly selected six-person juries

would have no minority representation while 89% would

not have two. Ballew, 435 U.S. at 237.

Thus, the conclusion reached in Williams that there

were only negligible differences in twelve and six-person

juries was proven incorrect and persuaded the Court to

permit no further reduction in jury size. More impor-

tantly, the decrease in minority representation resulting

from six-person juries was tolerated only because minor-

ities would be unrepresented due to the process of random

selection rather than arbitrary exclusion. Where a minor-

ity group is excluded by peremptory challenge, the exclu-

sion of the group is not purposeless but deliberate and

eliminates any possibility of minority representation.

C. Petitioner’s Proposed Standard For Determining

Whether The Fair Cross-Section Requirement Has

Been Violated Is Consistent With The Duren Stan-

dard And Does Not Defeat The Purpose Of The

Requirement.

Respondents argue that Petitioner's proposed standard

for determining whether a fair cross-section violation has

occurred is neither principled nor practical. Their pri-

mary objection is that it retains the proportionality com-

ponent of Duren while requiring no showing that the

disproportionality occurred over a period of time.

Respondents contend that retention of the propor-

tionality requirement in the petit jury context leads to

absurd results. (Resp. Br. 27, 28)

The underrepresentation of a cognizable group being

the conceptual benchmark for the fair cross-section

requirement, Duren, 438 U.S. at 364, it would be absurd

to abandon the proporationality requirement of Duren in

any fair cross-section analysis. It is difficult to conceive

how one might prove unconstitutional underrepresenta-

tion of a cognizable group without some comparison of the

percentage of a cognizable group in the community with

the percentage of the group represented on the relevant

component of the jury.

| No inconsistency results from retention of the propro-

tionality requirement where no demonstration is required

that the disproportionality occur over a period of time.

The third prong of the prima facie case articulated in

Duren is that the underrepresentation be due to the

systematic exclusion of the group in the jury-selection

process, i.e., that it be inherent in the particular jury

selection process utilized. Duren, 439 U.S. at 366. Evi-

dence that women were underrepresented on jury venires

not just occasionally, but consistently over a period of

time, furnished proof that the cause of the underrepresen-

tation was the statutory exemption at issue rather than

the random selection process. In the petit jury context

the cause of the underrepresentation will be obvious. If it

is the prosecution's exercise of its peremptory challenge,

rather than the random selection process, which causes

elimination of a cognizable group from the petit jury, proof

of repeated misuse of the peremptory challenge in other

cases would be superfluous. Only where the cause of the

underrepresentation in a particular case is not apparent is

it necessary to resort to proof of a consistent pattern of

disproportionality to demonstrate that the underrepre-

sentation is attributable to the particular selection pro-

cess utilized.

No absurdity results from retention of the propor-

tionality requirement. Respondents contend the purpose

of the fair cross-section requirement is to eliminate group-

based peremptory challenges and retention of the propor-

tionality requirerment leads to the absurd result of permit-

ting a prosecutor to engage in discriminatory jury

selection practices once a group is fairly represented on

the venire. (Resp. Br. 28, 31) The purpose of the fair cross-

section requirement is not to eliminate discrimination but

to provide the accused a jury chosen from a fair com-

munity cross section. Duren, 439 U.S. at 368. The test

proposed by Petitioner should not be subject to criticism

for only furthering cross-sectional values while failing to

remedy an evil it was not intended to eliminate.®

Respondents assert the proportionality requirement

prevents any complaint from being made until the selec-

tion of the jury is complete. (Resp. Br. 28) Respondents

assume that in every instance it will not be demonstrable

until selection is complete that tne prosecution is exercis-

ing its challenges so as to eliminate the possibility that the

jury will reflect a fair community cross section. This pre-

mise may often be untrue because it may be apparent

° To the extent that the fair cross-section requirement would pre-

vent a prosecutor from exercising his peremptory challenges to

defeat the possibility that the petit jury will reflect a cross-section of

the community, it will also tend to eliminate discrimination in jury

selection. Knowing that he cannot employ the peremptory challenge

to eliminate a cognizable group from the jury, the prosecutor will be

forced to make individualized judgments about members of that

group in determining whether and which members of the group

should be challenged.

during the process of selection that the final composition

of the jury will be unrepresentative. More importantly, if

Respondents’ concern is waste of judicial resources, the

remedy is not to eliminate the Sixth Amendment guaran-

tee of a fair and impartial jury, but for the prosecution to

refrain from misconduct which will necessitate selection

of a jury anew.

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 vy. NEW YORK.

A. After McCray, Swain Could Not Be Justifiably

Relied On To Sanction A Prosecutor's Discriminatory

Use Of The Peremptory Challenge.

Respondents complain that Petitioner has attributed

undeserving weight to the denial of certiorari in McCray

v. New York, 461 U.S. 961 (1983) because the opinion of

Justice Stevens and the dissent suggest an interest, not in

reexamining Swain, but in a Sixth Amendment analysis,

and therefore did not imply that lower courts were free to

reinterpret the Equal Protection Clause, as evidenced by

nog courts’ unanimous adherence to Swain. (Resp. Br.

33, 34)

Petitioner agrees that lower courts did not undertake

to reexamine Swain in response to McCray but believes

their reticence is attributable not to the lack of an invita-

tion, but to the reluctance of any lower court to refuse to

follow Supreme Court precedent which has not been

expressly overruled. Vail v. Board of Education, 706 F.2d

1435, 1445 (7th Cir. 1983) (Eschbach, J., concurring).

Courts naturally gravitated toward the Sixth Amend-

ment analysis which did not have the defect of involving

an inevitable collision with Swain, but noting in the

opinions accompanying McCray directed lower courts

solely toward the Sixth Amendment.

Although Respondents claim the dissenters did not

advocate overturning Swain, Justice Marshall not only

posited the Sixth Amendment would provide a vehicle for

reexamining Swain, but noted the absurdity inherent in

Swain of requiring that several suffer discrimination

before any defendant could object and that Swain was

inconsistent with other equal protection cases. McCray,

461 U.S. at 965 (Marshall, J., dissenting). Justice Stevens

expressed his agreement with Justice Marshall’s

appraisal of the importance of the issue and did not direct

litigants to any particular constitutional theory, but

merely noted the current developments in the law. ‘

Petitioner does not argue that merely because a major-

ity of the Justices indicated an interest in reexamining

Swain, lower courts were free to disregard it. (Resp. Br.

33) Rather, it is the invitation extended to lower courts to

serve as laboratories in which the procedural and sub-

stantive problems associated with judicial review of

peremptory challenges receive further study before the

Court would address the issue, that had the effect of

destroying the precedential force of Swain. If lower

courts were to experiment, to test solutions to the prob-

lems of discriminatory use of the peremptory challenge,

Swain could no longer control and could not be relied on to

dismiss a claim of discrimination in the exercise of the

peremptory challenge.

7 Respondents imply that if any invitation existed to reexamine

Swain it was extended only to state courts (Resp. Br. 33) but fail to

explain why Justice Stevens would also note the absence of any

conflicting decisions in the federal system as a reason to delay resolu-

tion of the issue. 461 U.S. at 962.

Petitioner is not suggesting that McC ray is paramount

to Batson, nor is that the issue. (Resp. Br. 34) The issue is

whether a case on collateral review can be denied the

retroactive benefit of a new rule based on the need for

finality and allocation of limited resources, where a dis-

tinction is drawn between direct and collateral review on

the assumption there is assurance the conviction was

perfectly free from error when it become final. Mackey v.

United States, 401 U.S. 667, 689-691 (1971) (Harian, J.,

concurring and dissenting), where no such assurance

exists because the “old rule” of Swain could no longer be

relied on to tolerate discrimination.

A fundamental concern in retroactivity analysis is that

similarly situated defendants be treated similarly. The

unfairness in some defendants effectively receiving the

retroactive benefits of Batson because their state courts

accepted the challenge of MV 7) ay to provide a remedy for

discriminatory peremptory challenge practices, while

other similarly situated defendants did not due to their

state courts’ refusal to provide redress, is evident. The

quality of justice an accused receives should not depend

on so fortuitous a circumstance and demands that all

those affected be provided the remedy of retroactive

applicaton of Batson.

B. Petitioner's Argument That New Rules Should Be

Given Complete Retroactive Effect Is Not Founded

In Blackstonian Theory But In The Same Principles

Which Persuiade That Non-Final Cases Benefit

From A New Rule.

Respondents do not address the merits of Petitioner's

argument that the same considerations which persuaded

this Court to extend the benefits of new rules to all cases

not final when the rule is announced, persuade that retro-

activity be extended to cases on collateral review. This

argument is made not in reliance on Blackstonian theory

(Rep. Br. 32) but merely asks this Court to reexamine

whether the concerns which led Justice Harlan to dis-

tinguish between cases on direct appeal and collateral

review continue to provide a rationale for the distinction.

Petitioner maintains those concerns are now adequately

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

Ill. SWAIN vy. 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.

A. Swain Did Not Hold The Assumption That Plack

Jurors Are Unable To Fairly Judge Black Defend-

ants To Be An Acceptable Trial-Related Considera-

tion Justifying Peremptory Challenge Of Black

Jurors Consistent With The Fourteenth Amend-

ment.

Respondents do not deny that an examination of the

prosecutor's explanation for his exercise of all ten of his

peremptory challenges against black jurors supports the

conclusion that the explanation is a mere pretext for racial

discrimination. They contend only that Swain v. Ala-

bama, 380 U.S. 202 (1965) holds that “it is permissible to

presume that black jurors will be sympathetic to black

defendants and to exercise peremptory challenges on that

basis.” (Resp. Br. 46) Respondents’ view is that Swain

condemned only “the peremptory excusal of blacks in all

cases in the belief that blacks are unqualified to serve in all

cases.” (Resp. Br. 44)

Swain insulated a prosecutor's challenges from review

to preserve the peremptory nature of the challenge and

created a presumption that the prosecutor acts on accept-

able trial-related considerations in exercising his chal-

lenges against black jurors. Swain did not, however, hold

that an assumption that a black juror would be unable to

fairly judge a black defendant was such an acceptable

consideration. As Justice White observed in his con-

curring opinion in Batson:

. . . Swain itself indicated that the presumption of

legitimacy with respect to the striking of black venire

persons could be overcome by evidence that over a

period of time the prosecutor had consistently

excluded blacks from petit juries. This should have

warned prosecutors that using peremptories to

exclude blacks on the assumption that no black could

fairly judge a black defendant wouid violate the

Equal Protection Clause.

Batson, 476 U.S. at 101 (White, J., concurring) (emphasis

added and footnote omitted). Justice White also observed

that a prosecutor's belief that blacks could not fairly try a

black defendant would be the equivalent of the view that

all blacks should be eliminated from the entire venire. 476

U.S. at 101. While no presumption need be indulged that

a prosecutor acted on permissible trial-related considera-

tions in removing black jurors because he has volunteered

his reasons for their removal, his express or implied

acknowledgment that black jurors were challenged on the

assumpti vn they could not fairly try a black defendant is

not acceptable under Swain.

B. The Illinois Appellate Court Held Swain Afforded

Petitioner No Basis For Relief From His Conviction.

Respondents argue the Illinois appellate court did not

reject Petitioner's claim because it found Swain dis-

positive but because “[i]t found dispositive of the issue

presented its own decision in an earlier case, and the

decisions of the other jurisdictions, rejecting the applica-

tion of cross-section principles to petit jury selection pro-

cedures.” (Resp. Br. 40)

Respondents ignore the appellate court’s acknowledge-

ment that while Swain holds it is “error to exclude a group

as a group where it is shown the group has been systemat-

ically prevented from jury service or on particular juries

. . . [njo showing of any such systematic action, however,

has been made here.” People v. Teague, 108 Ill. App.3d 91,

439 N.E.2d 1066, 1070 (1st Dist. 1982) (citations omitted).

The appellate court also interpreted Swain to be a bar to

recognition of any cross-sectional claim:

If, as Payne® holds, the State under the circum-

stances here posited has to show a basis for its

ny challenges, then the peremptory chal-

enge has been so effectively emasculated as to

destroy its function which Swain and Illinois law has

recognized.

Teague, 439 N.E.2d at 1070. Thus, the appellate court

specifically found no Swain-based claim was demon-

strated on the record before the court and that Swain

prevented any interference with a prosecutor's unfettered

use of the peremptory challenge in an individual case.

C. Petitioner's Swain Claim is Not Barred By Pro-

cedural Default Where Respondents Waived This

Issue By Their Failure To Timely Raise It In The

District Court And Court Of Appeals.

Respondents admit Petitioner filed a habeas corpus

petition alleging violation of his Sixth and Fourteenth

* People v. Payne, 106 Ill. App.3d 1034, 346 N.E.2d 1046 (1st Dist.

1982), reversed, 99 Il].2d 135, 457 N.E.2d 1202 (1983), cert. denied, 461

U.S. 1028, which held the Sixth Amendment allowed a trial court to

require a prosecutor to explain the reason for his challenge of black

jurors if it appeared that the prosecutor acted on the basis of race.

Amendment rights and that Weathersby v. Morris, 708

F.2d 1493 (9th Cir. 1983) was cited to the district court as a

basis for the award of relief to Petitioner, without objec-

tion from Respondents. (Resp. Br. 41) Respondents do

not claim that Petitioner's equal protection claim is dif-

ferent from that recognized in Weathersby and do not

explain why it is excused from failing to object to Peti-

tioner’s reliance on Weathersby in the district court on the

ground of procedural default.

Respondents also neglect to reveal that in the court of

appeals Petitioner again argued Weathersby afforded him

a basis for relief and that since the prosecutor volunteered

the reasons for his challenges, it need not be presumed he

acted for acceptable reasons, but his motives for excusing

the black jurors could be examined. Appellant's Brief, p.

25, 26. Respondents did not urge the court of appeals to

hold this claim barred by procedural default, but

responded to the argument on its merits. Appellee’s

Brief, pp. 13-15.

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 St., Suite 5-500

Chicago, Illinois 60601

(312) 917-5472

Attorneys For Petitioner

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.