# Respondents Brief — Teague v. Lane > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1437%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1989 - **Citation:** 489 U.S. 288 ## Text A 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 i 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? il TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW .. TABLE OF AUTHORITIES ................. CONSTITUTIONAL PROVISIONS EP PerrrrTrerrrrrrerrrTr rere STATEMENT OF THE CASE ............... SUMMARY OF ARGUMENT ................ ARGUMENT: I. 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 11 13 26 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 31 iv 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 Vv 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 vi 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. 1977, ch. 1977, ch. 1977, ch. 1981, ch. 1981, ch. Ill. Ill. Ill. Ill. Ill. Ill. Ill. Ill. Ill. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Stat. Stat. Stat. Stat. Stat. Stat. Stat. Stat. Stat. VI » Bee, MOB. BD ncccccseccess ix _ 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 25 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 sm (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. x 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 «N saaete 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). 8 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 9 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. 10 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 re ll 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. 12 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 13 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. l4 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 15 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- 16 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- 17 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. 18 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1437%3A07. Public record. Not legal advice.