# Petition for Writ of Certiorari — Franklin v. Sims (No. 08-641)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

Supreme C
p ine purt U.S.

\ ) 08-641 NOV12 2008

No. __ OFFICE OF THE CLERK

IN THE
Supreme Court of the United States

MICHAEL FRANKLIN ;
Petitioner,
Vv.

GREGORY SIMS, WARDEN
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

BARRY LEVENSTAM

Counsel of Record
JAMES T. MALYSIAK
SHORGE K. SATO
JENNER & BLOCK LLP
330 N. Wabash Ave.
Chicago, IL 60611
(312) 222-9350

Attorneys for Petitioner

November 12, 2008

i
QUESTION PRESENTED

Does the Seventh Circuit’s decision conflict with
Batson v. Kentucky, 476 U.S. 79 (1986), by affirming
the summary denial of a defendant's Batson
objection on the grounds that it was not
unreasonable for state courts to rely primarily
upon the presence of minority venirepersons on the
jury as the basis for negating a prima facie inference
of discrimination from the prosecution’s unexplained
exclusion of other minority venirepersons?

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PARTIES TO THE PROCEEDING

The parties below were (1) Michael Franklin and
(2) Gregory Sims, Warden, Taylorville Correctional
Center, Taylorville, Illinois. The real party in
interest is the State of Illinois.

ill
TABLE OF CONTENTS
QUESTION PRESENTED.....................sscsssesssccssreeeees i
PARTIES TO THE PROCEEDING ........00..0..ecceeee 4]
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TARE OF FREE I 0n.0..ccscccccescsesensccecenssvescoses v
RARER PE FAA REMI BI onc ccicesccessnecsssevsssnessseneseses vi

1. This Petition Should Be Granted To
Resolve A Circuit Split On Whether
Courts May Consider Statistics Based
On The Race of Included Jurors As A
Basis To Negate A Prima Facie
Inference Of Discrimination At Batson’s
II cis ninaidescaihancisindniatintesiibabaibinisatalbnrenaweces 7

A. Consideration Of __Inclusion-Based
Measures Is Directly Contrary To And
An Unreasonable Application Of This
Court’s Clearly Established Batson
SUR. iniisids einpictitieiiacisdnimscininiersceces 7

B. There Is A Broad Circuit Conflict
Concerning The Relevance Under
Batson Of The Inclusion Of Minority
Members On The Trial Jury. ........................ 10
1. Seven Federal Circuit Courts of

Appeal Allow Courts To Consider The
Inclusion Of Minority Members As A
Relevant Basis To Defeat An
Inference Of Discrimination. ... ............... 10
2. Three Federal Circuit Courts Of
Appeal Clearly Reject Reliance On

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The Inclusion Of Minority Members
On The Trial Jury As A Basis For
Defeating A Prima Facie Inference Of

§ FE ERE SRE SNC 13
: . Conflicting Lines Of Authority Exist
SA a 15
: 4. There Is Substantial Conflict Among
; State Courts Of Last Resort As To
The Relevance Of Statistics Based

; On The Inclusion Of Minority
} Members On The Jury. ...........sccccceeeeeeees 17

v
TABLE OF APPENDICES

Appendix A --
Seventh Circuit Opinion..................... la- 13a

Appendix B--
District Court Opinion...................... 14a-17a

Appendix C'-- j
Illinois Appellate Court Opinion...... 18a - 43a

Appendix D --
VOlr Dive TYAMSCTING ...........00cccccsceseees 44a -70a

vi
TABLE OF AUTHORITIES
CASES PAGE(S)
Aldridge v. State,
365 S.E.2d 111 (Ga. 1988) qc... e eee econ 19
Alexander v. Louisiana,
oo asaceceesesccvesevesossnticsoien 8
Alvarado v. United States,
497 U.S. 543 (1990) (“Alvarado IP).............004.. 15
Batson v. Kentucky,
a ibengntonl passim
Brinson v. Vaughn,
398 F.3d 225 (3d Cir. 2005) ..................cecceeeeeees 13
Coulter % McCann,
484 F.3d 459 (7th Cir. 2007)..............00ccceceeee 17
j Connecticut v. Teal,
: I csscsesccoseicenpassonsceccsbnoniees 17
Eagle v. Linahan,
i 279 F.3d 926 (11th Cir. 2001).........00000.0000.. 15, 16
Ex Parte Thomas,
I, TEND... scsscsconsdovesscuseonsiie 20
| Fleming v. Kemp, 7
} 794 F.2d 1478 (11th Cir. 1986) ...........ssseessssee 16 .

Se ee pt ee AT

_— a

> v

a ee TOS ee a ee ee Pen ee ee ee ee ee ee.
k ‘ >" 2 ae — 1 + A re Se

Harrell v. State,

571 So.2d 1270 (Ala. 1990) .............cccccceeeees 19, 20
Holloway v. Horn,

366 F.3d 707 (3d Cir. 2004) ................cccccccsessees 13
J.E.B. v. Alabama ex rel. T.B,,

is caccncccosccseocsissctocontin 8, 9
Johnson v. California,

i sammnnalenminudiin 8,9
Lancaster v. Adams,

324 F.3d 423 (6th Cir. 2003) ................ccccccceeeeee 16
Little v. United States,

613 A.2d 880 (D.C. 1992) 2.0.0.0... ceeceeeeeees 18, 19
People v. Bolling,

501 N.E.2d 1136 (N.Y. 1902) .................cccecccceee 18
People v. Evans,

530 N.E.2d 1360 (Ill. 1988) ..0..........ceceeeeeeeeeeeeees 19
People v. Houston,

890 N.E.2d 424 (III. 2008) ..0......ccccccseeceecceseeeeeee 17
People v. Jenkins,

S64 N.B.23d 47 GN.Y. 1900) .....................ccceccccces 18
People v. Reynoso,

I i scieeseeadnnimadiailis 18

i
3
;
‘
:
;
:
,

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

ESSE Se IS 8
People v. Williams,

670 N.E.2d 638 (Ill. 1996) .........0....ccccce eee 4-5,17
Powers v. Ohio,

EL SPE 8
Purkett v. Elem,

TINA a RN Pe Ny Be AE Fa 4
Stanley v. State,

Be ee RIE GO, BOD once nccccccccccccsscencccoses 19
Staples v. State,

NE BINT GGL, BED on .ccccccccccncecccesassonccess 19
State v. Smith,

Se FEB E.G. 1D) once cccccccoccccosssecee 17, 18
State v. Parker,

836 S.W.2d 930 (Mo. 1992) .............cccccceeseeseeeees 20
United States v. Alvarado,

Gas F.28 363 Ga Cie. 190)) ............-........... 14, 15
United States v. Alvarado,

891 F.2d 439 (2d Cir. 1991) .............................. 15

United States v. Battle,
836 F.2d 1084 (8th Cir. 1987)........0.....00000.. 13, 14

United States v. Campa,

529 F.3d 980 (11th Cir. 2008).................c ee 16
United States v. Chinchilla,
874 F.2d 695 (9th Cir. 1989) 0.0.0... eeeeeeeee 11

United States v. Clemons,
843 F.2d 741 (3d Cir. 1988) ................ccccee 13, 14

United States v. Dennis,
804 F.2d 1208 (11th Cir. 1986)....... 10, 11, 12, 15

United States v. Ervin,
266 Fed. Appx. 428 (6th Cir. 2008) .................. 16

United States v. Escobar-de Jesus,
187 F.3d 148 (1st Cir. 1999) ................... ce 12

United States v. Esparsen,
930 F.2d 1461 (10th Cir. 1991).............00...00 12

United States v. Girouard, 521 F.3d 110, 116-
collated 12

United States v. Grandison,
885 F.2d 143 (4th Cir. 1989) .............ccceceeseeeeeees 12

United States v. Johnson,
873 F.2d 1137 (8th Cir. 1989)........00. ee. 14

United States v. Lane,
866 F.2d 103 (4th Cir. 1989)...........0.... eee 12

_ United States v. Montgomery, ets ne
819 F. 2d 847 (8th Cir. 1989)................00.. 11, 12

United States v. Moore,

895 F. 2d 484 (8th Cir. 1990)...........cccesseeeeees 14
United States v. Sangineto-Miranda,

859 F.2d 1501 (6th Cir. 1988)......... 10, 11, 12, 16
Weems v. State,

416 S.E.2d 84 (Ga. 1992) ..............cccccccccscccsseees 19
STATUTES
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PETITION FOR A WRIT OF CERTIORARI

Petitioner Michael Franklin asks this Court to
issue a writ of certiorari to review and reverse the
decision of the United States Court of Appeals for the
Seventh Circuit rejecting his claim that the jury that
convicted him was selected in a manner violating the
requirements of Batson v. Kentucky, 476 U.S. 89
(1986).

OPINIONS BELOW

The decision of the United States Court of
Appeals for the Seventh Circuit is published at 538
F.3d 661 (7th Cir. Aug. 14, 2008), and is reprinted at
App. A, la - 18a. The Court of Appeals affirmed a
denial of Franklin’s petition for habeas corpus by the
United States District Court for the Northern
District of Illinois. The District Court opinion is
reprinted at App. B, 14a - 17a. The Illinois Appellate
Court opinion is unpublished; relevant excerpts of
the opinion and dissent discussing Franklin’s Batson
objection are reprinted at App. C, 18a - 43a.

JURISDICTION

On August 14, 2008, the Court of Appeals
announced its decision affirming the District Court’s
denial of Petitioner’s petition for a writ of habeas
corpus. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The Fourteenth Amendment of the United States
Constitution provides, in pertinent part:

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No State shall . . . deprive any person of
life, liberty, or property, without due
process of law; nor deny to any person
within its jurisdiction the equal
protection of the laws. . . .

Title 28, Section 2254 of the United States
Code provides, in pertinent part:

(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State
court shall not be granted with respect
to any claim that was adjudicated on
the merits in State court proceedings
unless the adjudication of the claim—

(1) resulted in a decision that was
contrary to, or involved = an
unreasonable application of, clearly
established Federal law, as
determined by the Supreme Court of
the United States; or

(2) resulted in a decision that was
based on an unreasonable
determination of the facts in light of
the evidence presented in the State
court proceeding.

STATEMENT OF FACTS

Petitioner Michael Franklin was convicted of
armed robbery after a jury trial in Illinois Circuit

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Court and sentenced to 23 years in prison. During
voir dire conducted on February 4, 2003, the trial
court questioned dozens of prospective jurors
individually. (App. D at 44a - 46a). Four African
American venire persons were questioned: Margaret
Cooley, Alma Minefe, Lance Tyson, and Dorothy
Gandy. Each one stated that they could be fair and
impartial and apply the law. (App. D at 50a - 51a,
53a - 54a, 55a, 57a - 59a, 63a, 65a).

The trial court called a panel of four prospective
jurors into the jury box for peremptory strikes. (App.
D at 66°). Ms. Cooley and Ms. Minefe were on the
first panel. (/d.) The State’s Attorney used his first
peremptory strike against Ms. Cooley. (id) Mr.
Tyson was then called to take Ms. Cooley’s place as a
prospective juror. (/d.) The State’s Attorney used his
next peremptory strike against Mr. Tyson. (/d)

Franklin’s counsel immediately objected on
Batson grounds. (App. D at 67a) The trial court
summarily denied this objection stating that
Franklin had failed to demonstrate a “prima facie
case of systematic exclusion.” (App. D at 67a - 69a).
The trial court observed that the panel tendered
“contains one African American.” (App. D at 68a.)
This was the sole factual finding made by the trial
judge, and the prosecution did not provide race-
neutral reasons for its strikes. (/d.)

After two more peremptory strikes, the final
African American venireperson, Dorothy Gandy, was
selected. (App. D at 69a - 70a.) The trial judge
stated: “(T]he record should reflect that the first
panel is Minefe, Freels, Gandy and McVicker. I

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believe there’s four jurors, two are African American.
Okay. That’s your first panel.” (App. D at 70a.).

The final selected jury consisted of twelve
members, two of whom (Minefe and Gandy) were
African American. (App. C at 27a). After his
conviction, Franklin appealed to the _ [Illinois
Appellate Court, arguing that the State
unconstitutionally exercised its peremptory strikes
against two other African American venire persons
in violation of the principles set forth in Batson v.
Kentucky, 476 U.S. 79 (1986). On September 9,
2005, the Illinois Appellate Court affirmed.

The Ilhnois Appellate Court reviewed Franklin’s
prima facie claim by applying seven “relevant
circumstances” identified by the Illinois Supreme
Court. (App. C, at 25a - 29a, citing People v.
Williams, 670 N.E.2d 638, 650 (Ill. 1996)). These
seven “relevant circumstances” were: (1) the racial
identity between the defendant and the excluded
venire persons; (2) a pattern of strikes against
African American venire’ persons; (3) a
disproportionate use of peremptory strikes against
African-American venire persons; (4) the level of
African-American representation in the venire as
compared to the jury; (5) the prosecutor’s questions
and statements during voir dire examination and
while exercising peremptory challenges: (6) whether
the excluded African-American venire persons were a
heterogeneous group sharing race as their only
common characteristic; and (7) the race of the
defendant, victim, and witness. U/d)

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Construing the record against Franklin, the
Illinois Appellate Court found that there were four
African Americans in the 36-person venire. (App. C
at 26a.) The Illinois Appellate Court concluded that
most of the Williams factors were neutral, in the
sense that they did not affirmatively support or
negate the Franklin’s prima facie case. (App. C at
25a - 29a.) However, the court found the fourth
Williams factor, the level of African-American
representation in the venire as compared to the jury,
weighed against Franklin’s Batson claim. (App. C at
27a.) The court’ noted, “African-Americans
constituted 16.7% of the jury, but only 11.2% of the
entire venire.” (/d.) The court held that “[t]hese
numbers belie any claim of purposeful discrimination
against African-Americans.” (/d.) (emphasis added).

The District Court denied Franklin’s petition for a
writ of habeas corpus. (App. B at 14a - 17a.) The
Seventh Circuit affirmed, observing that-its decision
“turnled] largely on the highly deferential standard
prescribed by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1).”
(App. A at 7a.)

The Seventh Circuit held that “the [Illinois
Appellate Court primarily relied on the fact that the
State struck only two out of four African-American
jurors of the thirty-six-person venire; that it used
only two of its seven peremptory strikes against
African-Americans; that at 16%, African-Americans
were over-represented on the jury given that they
comprised 11% of the venire: and that the victim and
two of the witnesses were also African-American.”

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(App. A at 12a). The Seventh Circuit concluded that
“the court’s reference to these factors cannot be
deemed unreasonable—as required by AEDPA.” (id.)

REASONS FOR GRANTING THE WRIT

This petition should be granted to settle a broad
and fundamental Circuit split concerning Batson v.
Kentucky, 476 U.S. 79 (1986). The Seventh Circuit
held that it was not unreasonable under Batson for a
state court to consider statistics based on the
numbers and percentages of African American
venirepersons included on the jury as factors
weighing against an inference of discrimination. This
Court has held, however, that decisions to include
minority members on the jury do not excuse or
explain decisions to exclude other minority members,
at least at Batson's prima facie stage.

Seven Circuits consider statistics concerning the
racial composition of the jury as a legitimate basis to
negate a Batson inference at the prima facie stage.
Three Circuits have rejected that approach, and
three of the seven Circuits that allow ‘such
consideration have conflicting authority on both
sides of the issue.

Further, several state courts of last resort are in
sharp conflict as to whether consideration of
inclusion-based statistics is proper at the prima facie
stage of a Batson inquiry. Given the depth and
breadth of the divisions between the positions and
the state of confusion within certain jurisdictions,

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there is nothing to be gained by allowing this issue to
percolate further.

I. This Petition Should Be Granted To Resolve A
Circuit Split On Whether Courts May Consider
Statistics Based On The Race of Included Jurors
As A Basis To Negate A Prima Facie Inference Of
Discrimination At Batson’s First Stage.

Statistics that focus on the number or percentage
of racial or ethnic minorities that are allowed to
participate on a jury should not be considered at the
prima facie stage of a Batson inquiry because such
statistics are irrelevant.

A. Consideration Of Inclusion-Based Measures Is
Directly Contrary To And An Unreasonable
Application Of This Court’s§ Clearly
Established Batson Jurisprudence.

This Court stated that inclusion of some African-
Americans on a jury cannot insulate the exclusion of
other African Americans from Batson’s
individualized scruiiny. In Batson, this Court noted
that “[a] single invidiously discriminatory act is not
immunized by the absence of such discrimination in
the making of other comparable decisions.” 476 U.S.
at 95.

Statistics based on the numbers or percentages of
minority members included on a trial jury do not in
themselves demonstrate the absence of racial
discrimination in the selection of the jury. Some
courts have held that such statistics can indicate the

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prosecution’s “good faith” in exercising its
peremptory strikes. However, this Court has long
held, even prior to Batson, that “affirmations of good
faith .. . are insufficient to dispel a prima facie case”
of discrimination because “[t]he result bespeaks
discrimination, whether or not it was a conscious
decision.” Alexander v. Louisiana, 405 U.S. 625, 632
(1972). This Court has stated more recently that
courts should not speculate as to the prosecutor’s
motives when “asking a simple question” at stage
two of the Batson process would “produce actual
answers to suspicions and _ inferences’ that
discrimination may have infected the jury selection
process.” Johnson v. California, 545 U.S. 162, 172
(2005). Focusing on the inclusion of minority jurors
as a sign of prosecutorial “good faith” could also
provide prosecutors with an “easy means of justifying
a pattern of unlawful discrimination which stops
only slightly short of total exclusion.” People v. Snow,
44 Cal.3d 216, 225, 242 Cal. Rptr. 477, 482 (Cal.
1987). As here, a prosecutor might switch gears
after his discriminatory use of peremptory strikes
elicits a Batson objection.

Inclusion-based statistics are also not relevant to
the extent that they are used to show the lack of
prejudice suffered by the defendant. This Court
emphasized in Powers v. Ohio, 499 U.S. 400 (1991),
that a Batson inquiry is designed to protect not only
defendants but also individual jurors and the
community from racially-motivated peremptory
challenges. Jd. at 411. Thus, “[blecause the right to
nondiscriminatory jury selection procedures belongs

to the potential jurors . . . , the possibility that
members fof a cognizable group] will get on the jury
despite the intentional discrimination is beside the
point.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
142 n. 13 (1994) (emphasis added).

Further, such statistics are not relevant as mere
counterweights to an inference of discrimination, at
least at the prima facie stage. This Court has held
that evidence relating to the strength of an inference
of purposeful discrimination is not relevant until the
third stage of a Batson inquiry. Purkett v. Elem, 514
U.S. 765, 768 (1995) (per curiam) (“It is not until the
third step that the persuasiveness of the justification
becomes relevant—the step in which the trial court
determines whether the opponent of the strike has
carried his burden of proving’ purposeful
discrimination.”) More recently, this Court described
the “burden-shifting framework” of Batson as “just a
means of arranging the presentation of evidence” and
involving “no credibility assessment” at steps one or
two. Johnson, 545 US. at 171 n. 6. Thus, if the only
relevance of the inclusion of minority members on
the jury pertains to the weight or persuasiveness of
an inference of discrimination, consideration of such
evidence at the prima facie stage of a Batson inquiry
is no longer appropriate after Purkett and Johnson.

This Petition should be _ granted because
inclusion-based statistics are irrelevant at the prima
facie stage of a Batson inquiry, and therefore,
consideration of such statistics is an objectively
unreasonable application of Batson.

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B. There Is A Broad Circuit Conflict Concerning
The Relevance Under Batson Of The Inclusion
Of Minority Members On The Trial Jury.

Recent decisions on both sides of the issue show
that Batson is being applied unevenly nationwide
and that the divisions are not resolving themselves.

1. Seven Federal Courts of Appeals Allow
Courts To Consider The Inclusion Of
Minority Members As A Relevant Basis To
Defeat An Inference Of Discrimination.

Seven federal Courts of Appeal have, at one time
or another, held that courts can consider the number
or percentage of minority members on the trial jury
as significant relevant circumstances that can negate
a prima facie inference of discrimination. Many of
these courts follow the leading decisions of United
States v. Dennis, 804 F.2d 1208 (11th Cir. 1986) and
United States v. Sangineto-Miranda, 859 F.2d 1501
(6th Cir. 1988). As this Petition discusses below,
however, there is conflicting authority within three
of these seven jurisdictions. See infra Sec. I.B.3.

The prosecution in Dennis used three out of its
four peremptory strikes against African-American
venirepersons. 804 F.2d at 1211. The Eleventh
Circuit concluded that there was no viable Batson
claim, however, because it was “obvious that the
government did not attempt to exclude all blacks, or
as many blacks as it could from the jury.” Jd. The
court stated that “the unchallenged presence of two

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blacks on the jury undercuts any inference of
impermissible discrimination.” Jd.

_ A few months after the Eleventh Circuit decided
Dennis, the Sixth Circuit decided Sangineto-
Miranda. The Sixth Circuit stated that if “the
percentage of minority members in the ultimate jury
is the same or greater” than was present in the
venire, “that would be a factor tending to negate the
inference of discrimination.” 859 F.2d at 1521-22.
Similarly, the Sixth Circuit held that “{ilf there are
minority members on the jury but the prosecutor did
not use all its peremptory challenges, that would be
a factor tending to refute discrimination.” Jd. at
1522.

Several courts have since cited to these leading
cases as support for the consideration of inclusion-
based statistics. In United States v. Montgomery,
819 F.2d 847 (8th Cir. 1987), the Eighth Circuit
relied upon Dennis and “(t]he fact that the
government accepted a jury which included two
blacks, when it could have used its remaining
peremptory challenges to strike these potential
jurors” as the basis to reject a Batson claim. Jd. at
851. The Ninth Circuit would later cite to
Montgomery as support for the claim that “the
willingness of a prosecutor to accept minority jurors
weighs against the findings of a prima facie [Batson]
case.” United States v. Chinchilla, 874 F.2d 695, 698
n. 4 (9th Cir. 1989).

Sa EE Se

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Citing to both Dennis and Montgomery, the
Fourth Circuit affirmed a conviction over an African
American defendant's Batson claim which was based
on the prosecution’s peremptory strikes against two
African American venirepersons. United States v.
Lane, 866 F.2d 103, 104 (4th Cir. 1989). The Fourth
Circuit concluded that the prosecutor’s conduct in
allowing two African American venirepersons to be
seated on the jury “weighs heavily in support of the
district court finding of no discrimination.” Jd. at
106-07. The Fourth Circuit reached the same
conclusion in United States v. Grandison, 885 F. 2d
143 (4th Cir. 1989), and relied upon Dennis,
Montgomery, Sangineto-Miranda, and Lane to
support its conclusion that “the fact the jury included
two black jurors is significant.” Jd. at 147. The Tenth
Circuit followed Grandison in holding that the final
composition of the jury is a relevant circumstance
that can negate a Batson inference. United States v.
Esparsen, 930 F.2d 1461, 1468 (10th Cir. 1991).

The First Circuit relied upon Sangineto-Miranda
in holding that a defendant failed to demonstrate a
“pattern” of strikes because the ultimate jury
included several African-Americans. United States v.
Escobar-de Jesus, 187 F.3d 148, 165 (ist Cir. 1999).
The First Circuit recently stated that the possibility
of seating minority members “might be critical to an
assessment of whether a prima facie case was made.”
United States v. Girouard, 521 F.3d 110, 116-17 (1st
Cir. 2008) (citing Escobar-de Jesus). ~

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2. Three Federal Courts Of Appeals Clearly
Minority Members On The Trial Jury As A
Basis For Defeating A Prima Facie

The leading cases that rejected the consideration
of inclusion-based statistics as a basis to negate a
Batson inference are United States v. Clemons, 843
F.2d 741 (3d Cir. 1988) and United States v. Battle,
836 F.2d 1084 (8th Cir. 1987).

In Clemons, the Third Circuit rejected the
government’s position that “there could be no prima
facie case of discrimination under Batson because
only two blacks were struck.” Jd. at 748. Similarly,
in Holloway v. Horn, 355 F.3d 707 (3d Cir. 2004), the
Third Circuit concluded that “tLe final composition of
the jury . . . offers no reliable indication of whether
the prosecutor intentionally discriminated in
excluding a member of the defendant’s race.” Jd. at
728. Even more recently, the Third Circuit rejected
using the inclusion of minority members to defeat a
prima facie showing of racial discrimination as
~ “directly contrary” to Batson’s goal “to ensure that a
State does not use peremptory challenges to remove
any black juror because of his race.” Brinson v.
Vaughn, 398 F.3d 225, 233 (3d Cir. 2005).

In Battle, the Eight Circuit emphasized that “the
striking of a single black juror for racial reasons
violates the equal protection clause, even though
other black jurors are seated, and even when there
are valid reasons for the striking of some black

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jurors.” Jd. at 1086. In United States v. Johnson, 873
F.2d 1137 (8th Cir. 1989), the court rejected the
argument that there was no Batson claim where the
prosecutor had already seated two African American
venirepersons, stating that this view constituted a
“misreading of Batson,” and cited to Battle and
Clemons for the proposition that “a Batson inquiry
focuses on whether or not racial discrimination exists
in the striking of a black person from the jury, not on
the fact that other blacks may remain on the panel.”
Id. at 1139 - 40; see also United States v. Moore, 895
F.2d 484, 487 n. 5 (8th Cir. 1990) (recognizing that
“it is the exclusion of blacks and not their inclusion
(ze. the final number) that is vital to a prima facie
case of discrimination {under Batson]).”)

The Second Circuit has reversed a previously held
position that allowed consideration of statistics based
on the inclusion of minority members on a jury as a
relevant factor negating a prima facie inference of
discrimination. In United States v. Alvarado, 923
F.2d 253 (2d Cir. 1991) (“Alvarado IIT), the Second
Circuit rejected the argument that the prosecutor's
failure to exercise an available challenge against a
minority venireperson supported a finding of no
prima facie case of discrimination, stating that “[t]he
discrimination condemned by Batson need not be as
extensive as numerically possible.” Jd. at 256. The
Second Circuit stated further that “[a] prosecutor
may not avoid the Batson obligation to provide race-
neutral explanations for what appears to be a
statistically significant pattern of racial peremptory

15

challenges simply by forgoing the opportunity to use
all of his challenges against minorities.” Jd.

Alvarado ITI was decided on remand from this
Court, which had vacated the Second Circuit's
previous decision in United States v. Alvarado, 891
F.2d 439 (2d Cir. 1989) (“Alvarado IP). See Alvarado
v. United States, 497 U.S. 543, 544 (1990) (per
curiam) (“Alvarado IT). In Alvarado I, the Second
Circuit held that it did not need to reach the issue of
whether the defendant had sufficiently alleged a
prima facie Batson claim, because on review, it was
entitled to take a “bottom line” approach and
consider the fact that the racial composition of the
jury reflected a fair cross section of the community.
Id. at 445. Before this Court, however, the Solicitor
General of the United States confessed that the
Second Circuit’s “bottom line” analysis was “contrary
to Batson” and declined to pursue the argument,
which led to this Court’s remand and the Second
Circuit's reversal. A/varado II, 497 U.S. at 544.

3. Conflicting Lines Of Authority Exist In

Three Circuits.
Three Circuits now have conflicting decisions on
this issue. The Eleventh Circuit recently

contradicted its earlier position in Dennis by holding
that “(tlhe trial court’s exclusive reliance on a
comparison of the proportion of blacks on the petit
jury to the proportion of blacks in the venire to
determine the presence of a Batson violation was in
error.” Eagle v. Linahan, 279 F.3d 926, 942 (11th Cir.
2001). The court concluded that, “[w]hile it may be

16

true that the prosecution’s use of peremptory strikes
did not result in a racially unbalanced petit jury,
that is not the test for deciding whether there has
been an equal protection violation.” Jd; cf Fleming
v. Kemp, 794 F.2d 1478, 1483 (11th Cir. 1986)
(rejecting the argument that Batson is inapplicable
where the prosecutor did not exclude all black
jurors); but see United States v. Campa, 529 F.3d
980 (llth Cir. 2008) (stating that the “well-
established precedent” of Dennis “controls” the issue
that defendants did not establish a prima facie
Batson claim where the seated jury included two
black persons).

The Sixth Circuit has also recently decided this
issue in a manner that conflicts with its holding in
Sangineto-Miranda. In Lancaster v. Adams, 324 F.3d
423 (6th Cir. 2003), the Sixth Circuit, on habeas
review, concluded that a state court’s application of
Batson was unreasonable in finding no violation in
the peremptory challenge to an African American
venireperson because of the prosecution’s failure to
strike subsequent African American venirepersons.
Id. at 433-34. The Sixth Circuit concluded that “the
prosecutor’s decision to select a subsequent African-
American juror from the venire does nothing to cure
the wrong committed under Batson.” Id. at 434. A
recent Sixth Circuit opinion, however, expressly
relied upon Sangineto-Miranda in finding no Batson
violation where there was very little difference in the
composition of the jury compared to the composition
of the venire. United States v. Ervin, 266 Fed. Appx.
428, 432 (6th Cir. 2008).

17

Similarly, although the Seventh Circuit in this
case held that it was not unreasonable under AEDPA
for the Illinois Appellate Court to rely upon the
inclusion of African Americans on the trial jury, it
previously stated that the correctness of such an
argument was “dubious, given Batson’s emphasis on
the impermissible nature of discrimination against
individual potential jurors” and given this Court’s
holding in Connecticut v. Teal, 457 U.S. 440, 442
(1982), which “rejectfed] the same kind of ‘bottom
line’ approach ffor Title VII employment
discrimination cases.” Coulter v. McCann, 484 F.3d
459, 467-68 (7th Cir. 2007).

4. There Is Substantial Conflict Among State
Courts Of Last Resort As To The Relevance
Minority Members On The Jury.

In addition to the broad split among .federal
courts, there is a substantial conflict among state
courts of last resort about the continuing relevance of
the statistics based on the inclusion of minority
members on a jury as evidence tending to negate an
inference of discrimination.

Illinois state courts have long considered the
inclusion of minorities on a jury as a relevant
circumstance that could negate an inference of
discrimination. See Williams, 670 N.E.2d at 650; see
also People v. Houston, 890 N.E.2d 424, 429 (Ill.
2008). North Carolina courts also consider the
“acceptance rate” of minority jurors as a factor
“tending to refute an allegation of discriminatory use

18

of [peremptory challenges].” State v. Smith, 400
S.E.2d 712, 724 (N.C. 1991). The California Supreme
Court has cited to the acceptance of minority jurors
approvingly as “an appropriate factor for the trial
judge to consider in ruling on a [Batson] motion.”
People v. Reynoso, 74 P.3d 852, 867 (Cal. 2003).

However, state courts have also _ rejected
consideration of irclusion-based statistics as
irrelevant at the outset of a Batson inquiry. The
New York Court of Appeals held that a defendant
made out a prima facie Batson claim, despite the
inclusion of African American venirepersons on the
jury in a percentage resem ling the percentage of
African Americans in the community. JPeople v.
Jenkins, 554 N.E.2d 47, 58-59 (N.Y. 1990). The court
stated that “the constitutional violation is the
exclusion of any blacks solely because of their race. If
any blacks are so excluded, it is of no moment that
the jury nevertheless contains a token number of
blacks.” Jd. at 558-59; see also People v. Bolling, 591
N.E.2d 1136, 1139 (N.Y. 1992) (“The wrong may
occur after only one strike and the prosecution
cannot .. . overcome it with evidence that the jury,
as finally selected, contained a proportionate number
of African-Americans.”)

The D.C. Court of Appeals held that a comparison
of the racial compositions of the jury and venire is an
irrelevant factor. Little v. United States, 613 A.2d
880, 886 (D.C. 1992). The court noted that “the mere
presence of blacks on the jury in a ratio similar to
that of blacks in the venire or community does not

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19

negate a defendant’s prima facie case.” Jd. at 886.
The Maryland Court of Appeals was also early to
reject the notion that “Batson may be rendered a
priori inapplicable by a prosecutorial game of
numbers.” Stanley v. State, 542 A.2d 1267, 1279
(Md. 1988).

Further, states that once accepted inclusion-
based statistics have since rejected them as
irrelevant. In Georgia, courts once openly considered
such inclusion-based statistics as a basis to defeat a
Batson inference. See Aldridge v. State, 365 S.E.2d
111, 115 (Ga. 1988).1 The Georgia Supreme Court
has since questioned the reasoning of A/dridge,
holding that the “mere fact that the trial jury
contained a greater percentage of black jurors .. .
than were in the qualified venire . . . no longer is
sufficient to rebut the inference of intentional
discrimination.” Staples v. State, 434 S.E.2d 757, 759
(Ga. 1993); see also Weems v. State, 416 S.E.2d 84,
85 (Ga. 1992) (discussing how this Court’s evolving
Batson jurisprudence cast A/dridge into doubt).

The Alabama Supreme Court has also changed its
position on the relevance of inclusion-based
statistics. In Harrell v. State, 571 So.2d 1270 (Ala.
1990), the Alabama Supreme Court observed that an

1 The Illinois Supreme Court originally cited to
Aldridge as the basis for allowing Illinois courts to
consider inclusion-based statistics. People v. Evans,
530 N.E.2d 1360, 1365 (Ill. 1988).

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20

inference of discrimination could be negated with a
showing that “a greater percentage of blacks sat on
the jury than sat on the lawfully established venire.”
Id. at 1272. Four years later, however, in Ex Parte
Thomas, 659 So.2d 3 (Ala. 1994), the Alabama
Supreme Court disclaimed this observation, stating
that “[a] skilled but racially biased attorney could
learn to manipulate the strike process . . . as long as
some blacks were left on the jury. Such a result
should not be approved.” Jd. at 7.

The State of Missouri also changed its stance on
the relevance of inclusion-based measures. In State
v. Parker, 836 S.W.2d 930 (Mo. 1992), the Missouri
Supreme Court described the “former practice of
placing decisive reliance upon the presence of
African-Americans on the defendant’s jury .. . to
undercut any inference of discrimination is no longer
valid” because of this Court’s evolving Batson
jurisprudence. /d. at 940.

Clearly, fundamental divisions exist between
state courts of last resort. Although a few courts
have, upon close consideration of the issue, reversed
their position and rejected inclusion-based statistics
as irrelevant, other courts still uncritically accept
such statistics as appropriate and even significant.
The persistence of these divisions shows that there is
no benefit to further percolation. This petition is an
ideal vehicle for this Court to address this broad and
fundamental dispute and ensure the uniform
application of the Equal Protection principles of
Batson nationwide.

21

CONCLUSION

For the foregoing reasons, this Court should grant
this Petition for writ of certiorari.

Respectfully submitted,

BARRY LEVENSTAM

Counsel of Record
JAMES T. MALYSIAK
SHORGE K. SATO
JENNER & BLOCK LLP
330 N. Wabash Ave.
Chicago, IL 60611
(312) 222-9350

Attorneys for Petitioner
November 12, 2008

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0398%3A1. Public record. Not legal advice.