Davis v. Warden Court Opinion

    3n ttje

United States (Court of Appeals
Jfor tl|E ^cucntli Circuit

No. 88-1590 
H u r s e y  D a v i s ,

Petitioner-Appellee, 
v.

W a r d e n , Joliet Correctional Institution 
at Stateville; M i c h a e l  L a n e , Director,
Department of Corrections, State of Illinois,

Respondent-Appellant.

Appeal from the United States District Court 
for the Northern District of Illinois, Eastern Division. 

No. 85 C 4120—James B. Parsons, Judge.

A rgued September 22, 1988— Decided F ebruary 1, 1989

Before B a u e r , Chief Judge, W o o d , J r . ,  and F l a u m , 
Circuit Judges.

W o o d , J r . ,  Circuit Judge. Hursey Davis, a black pris­
oner convicted of attempted murder and theft by an all- 
white jury, claimed that the Cook County jury selection 
system violated his constitutional right to a jury selected 
from a fair cross section o f the community. Both the re­
spondent and Davis moved for summary judgment. The 
district court granted Hursey Davis’s petition for writ of 
habeas corpus on the motion for summary judgment; the 
respondent appeals. For the reasons set out below, we



2 No. 88-1590

reverse the district court’s judgment granting Davis’s 
petition for habeas corpus and enter judgment on the mo­
tion for summary judgment in favor of respondent.

I. FACTS
On October 27, 1981, Hursey Davis appeared in the 

Cook County circuit court located in Des Plaines, Illinois, 
a northern suburb of Chicago. The State charged Davis 
with attempted murder and auto theft in connection with 
the February 13, 1981 shooting of a white Des Plaines 
police officer.

Prior to trial, Davis’s counsel discovered that every per­
son on the jury list was white. The day of trial, Davis’s 
counsel requested that the court question the forty pro­
spective jurors as to how they were selected to serve in 
the Des Plaines courthouse, or in the alternative, dismiss 
them. Defense counsel argued that the jurors were not 
randomly selected. According to defense counsel, the ar­
ray was composed of people who lived in predominantly 
white northwest suburbs of Cook County and the predom­
inantly white northwest side of the City of Chicago.1 He 
described another Des Plaines criminal trial in which the 
jurors had been asked if the Des Plaines courthouse was 
“ convenient”  for them. The trial court, after listening to 
Davis’s counsel, denied the motion challenging the array 
and refused to question the prospective jurors concern­
ing the jury selection process. The trial court stated that 
he found “ outrageous”  defense counsel’s allegation that 
blacks were excluded from the jury list.

The jury convicted Davis. The trial court denied Davis’s 
motion for a new trial and sentenced him to concurrent 
terms of fifty years for attempted murder and five years

1 Specifically, defense counsel read off the residences of the dif­
ferent members of the venire. Defense counsel did not name the 
homes of all forty members of the venire, however, and failed to 
list the residences of all the members in the record.

No. 88-1590 3

for theft. Davis then appealed, challenging the constitu­
tionality of the jury selection system.

The Appellate Court of Illinois reduced Davis’s sentence 
from fifty to thirty years but rejected Davis’s claim that 
the trial court unconstitutionally deprived him of a jury 
drawn from a representative cross section of the communi­
ty. The appellate court found, in rejecting defendant’s 
claim, that the trial court’s failure to question jurors did 
not constitute “ reversible error.”  See People v. Davis, 121 
111. App. 3d 916, 460 N.E.2d 471, 474 (1984).

After the Illinois Supreme Court denied further review, 
Davis petitioned the federal district court for a writ of 
habeas corpus pursuant to 28 U.S.C. § 2254, alleging that 
the Cook County jury selection system violated his sixth 
and fourteenth amendment right to trial by a fair and im­
partial jury.

During discovery granted by the district court, defense 
counsel deposed Mr. Daniel A. Covelli, Jr., the county jury 
supervisor in 1981. The county jury supervisor, along with 
his other duties, assigned persons summoned for jury duty 
to courtrooms in various parts of Cook County. Covelli 
did not recall the exact procedure used in Davis’s case 
but outlined the steps he would commonly take: Approxi­
mately 750 to 1000 potential jurors reported to the Daley 
Center in Chicago every Monday for jury duty.1 2 At the 
Daley Center, members of the jury supervisor’s staff called 
at random approximately twice the number of names needed,

2 Although Mr. Covelli did not testify as to the exact method 
used to call prospective jurors to the Daley Center, both parties 
presume that the potential jurors were randomly selected from 
voters’ lists. The Illinois statutes order the jury commissioners 
to summon jurors from voter lists or drivers’ license holder list­
ings. 111. Ann. Stat. ch. 78 1 25 (Smith-Hurd 1987). See also Peo  ̂
pie ex rel. Lasecki v. Traeger, 374 111. 355, 358, 29 N.E.2d 519 
(1940). Because the matter is not in dispute and the statute sug­
gests the potential jurors came from voters’ lists, we will accept 
the parties’ presumption.



4 No. 88-1590

using a bingo-type machine called a peapot. Covelli’s staff 
then took the prospective jurors to a courtroom where 
Covelli thanked them for coming and asked those persons 
living in or near the suburbs to volunteer for jury duty 
at suburban courthouses. According to his testimony, Co­
velli said something like, “ Be kind to your fellow jurors. 
It’s a large county. If you live close to that area, it would 
be easier on other jurors.”  If the suburban court needed 
more jurors than would volunteer, Covelli’s staff picked 
the rest randomly. Covelli ceased using this system around 
1983.

Both sides moved for summary judgment on the peti­
tion for writ of habeas corpus. In support of the motion, 
Davis’s counsel submitted the affidavit of statistician 
Steven Whitman. Whitman, in his review of the composi­
tion of the venire in Davis’s case, stated that the proba­
bility of selecting forty white jurors at random from the 
entire population of Cook County was seven chances in 
one million. He added, “ the selection of this group of forty 
white people from the population of Cook County, Illinois, 
is totally inconsistent with a random, racially neutral selec­
tion process.”

The district court granted Davis’s petition for writ of 
habeas corpus on summary judgment and remanded the 
case to the state court for a new trial. The district court 
held that Davis established a prima facie case of sys­
tematic exclusion of blacks from the venire, which the re­
spondent failed to adequately refute. The district court 
then denied the respondent’s motion to alter or amend 
the judgment and the respondent appealed. II.

II. ANALYSIS
A. Supreme Court Precedent

In Duncan v. Louisiana, 391 U.S. 145 (1967), the Su­
preme Court extended the sixth amendment right to an 
impartial jury to defendants in state proceedings. Defin­
ing the elements of the sixth amendment that extend to 
the states, the Supreme Court has held “ the selection of

No. 88-1590 5

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.” Taylor v. Louisiana, 419 U.S. 
522, 696 (1975); see also Teague v. Lane, 820 F.2d 832, 
837 (7th Cir. 1987), cert, granted, 108 S. Ct. 1106 (1988). 
The fair-cross-section inquiry has three components:

In order to establish a prima facie violation of the 
fair-cross-section requirement, the defendant must 
show (1) that the group alleged to be excluded is a 
“ distinctive” group in the community; (2) that the 
representation of this group in venires from which 
juries are selected is not fair and reasonable in rela­
tion to the number of such persons in the community; 
and (3) that this underrepresentation is due to sys­
tematic exclusion of the group in the jury-selection 
process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). Once the de­
fendant has made a prima facie showing as to these ele­
ments, the burden shifts to the state to show that it has 
an overriding, significant state interest. Id. at 367.

B. Distinctive Group in the Community
The parties do not dispute that defendant has satisfied 

the first prong of the Duren test. Under Duren, the group 
excluded from the venire must be distinctive in the com­
munity. All agree that blacks are a distinctive group in 
the community. See Strauder v. West Virginia, 100 U.S. 
303 (1880).

C. Fair and Reasonable Representation o f  Community
The second prong of the Duren test presents greater 

difficulties. Under this second prong, defendant must prove 
that the representation of blacks on the jury list is not 
fair and reasonable in relation to the number of blacks 
in the community. This element of the Duren test hinges 
upon the disputed geographic scope of the community 
from which the state must draw the venire under the



6 No. 88-1590

sixth and fourteenth amendments. If the Constitution per­
mits this court to define community as a lesser area than 
Cook County, the court must examine the issue of fairness 
and reasonableness with that smaller community in mind. 
From our analysis of the history of the sixth amendment 
and court precedent, we find that the district court did 
not err in evaluating the fairness and reasonableness of 
Davis’s venire in relation to the racial makeup of Cook 
County.

1. Legislative History
The district court found that the early Congress intended 

the venire to be drawn from an area larger than what 
we generally consider to be a community.3 According to 
the district court, Congress rejected James Madison’s at­
tempt to incorporate the term “ vicinage” in the sixth 
amendment and instead adopted the term “ district” to 
define the area from which the jury was to be drawn. 
The district court stated, “ The Sixth Amendment was 
never intended to provide a defendant with a trial in his 
backyard, nor with a jury comprised of the families or 
neighbors of his victim.”

The right to a jury trial in the state or district arose 
from the concept of vicinage but that concept came to mean 
different things depending on the time, place, and people 
affected. The term “vicinage,” in early times, literally meant 
“neighborhood” or “ county.” See Williams v. Florida, 399 
U.S. 78, 93 n.35 (1970); Connor, The Constitutional Right 
to a Trial by a Jury o f  the Vicinage, 57 U. Pa. L. Rev. 
197, 198-99 (1909). In England, the phrase “ a jury drawn 
from the vicinage”  meant that jurors were drawn from

3 The district court used the following definition of community: 
“ a body of people having common organization living in the same 
place, under the same laws, in which they share commonly the 
responsibilities of the organization and maintenance of a govern­
ment-capable under superior law of incorporating for the purposes 
of taxation and management.” Davis v. Warden, No. 85 C 4120, 
slip op. at 2, n .l.

No. 88-1590 7

the immediate locality. Jurors, at that time, were expected 
to use their independent knowledge of the facts to decide 
the case. The American colonists, on the other hand, ar­
gued that the concept of vicinage prohibited England from 
shipping colonists accused of treason across the ocean for 
trial. Blume, The Place o f  Trial o f  Criminal Cases: Con­
stitutional Vicinage and Venue, 43 Mich. L. Rev. 59, 64 
(1944). Vicinage, for the colonists, did not invoke the right 
to a jury in the immediate locality but the right to trial 
on the continent of North America. See Blume, supra at 
65-66; Connor, supra at 198-99. History suggests that vic­
inage was an elastic concept describing a large or small 
area, depending on the underlying policy evoked.

The ambiguous concept of vicinage apparently also trou­
bled the early Congress. When Congress wrote the Bill 
of Rights, the members debated whether to include the 
term “ vicinage”  in the sixth amendment. See Williams, 
399 U.S. at 94, 94 n.37, 95. According to James Madison, 
some worried that the term was too vague if defined by 
law, while others argued that the concept was too nar­
row if interpreted as “ trial in the county.”  See id. at 95- 
96. Ultimately, they compromised. See id. at 96. Congress 
adopted the sixth amendment with the added phrase “ 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 previously ascer­
tained by law . . . .”  U.S. Const., amend. VI (emphasis 
added).

Although the district court found that the jury must be 
drawn from an area larger than a community to satisfy 
the term “ district or state,”  we are not as certain that 
the early congressional debates and history of the term 
“ vicinage” lead necessarily to this inference.4 We believe

4 James Madison’s comments about the defeat of the vicinage 
amendment offer some support for the district court’s position: 
“ In some States, jurors are drawn from the whole body of the 
community indiscriminately; in others, from larger districts com- 

(Footnote continued on following page)



8 No. 88-1590

that the “ district and state” language of the sixth amend­
ment places some parameters on a legislature’s power to 
draw the jurors but does not per se prevent a legislature 
from delineating a smaller area from which to draw a 
jury. As history suggests, vicinage is an elastic concept 
affected by underlying policies and, as such, should be in 
the majority of cases left to a legislative body. As James 
Madison said, “ [Vicinage] must be therefore left to the 
discretion of the legislature to modify it according to cir­
cumstances.”  See Williams, 399 U.S. at 94 n.35 (citing 
2 M. Farrand, Records of the Federal Convention 332 
(1911)); see also Blume, supra at 93 (“ The jury guaranteed 
to the people of the various territories was not a jury 
of the ‘county’ but a jury to be selected from such places 
as the legislative authority might provide.” )

2. Respondent’s Approach to the Community Issue
Respondent takes a different tack. He argues that peti­

tioner has no constitutional right to a jury drawn from 
the entire area of Cook County. Seventh Circuit prece­
dent, he asserts, permits a jury selection system that ex­
cludes prospective jurors not living within a reasonable 
distance from the courthouse. See United States v. Clan­
cy, 276 F.2d 617, 631-32 (7th Cir. 1960), rev’d on other 
grounds, 365 U.S. 312 (1961). Furthermore, he states that 
this court need not constitutionally define Cook County 
as the community simply because an Illinois statute sum­
mons jurors on a county-wide basis.

4 continued
prehending a number of counties, and in a few only from a single 
county.” Warren, New Light on the History o f the Federal Judi­
ciary Act, 37 Harv. L. Rev. 49, 106 (1923) (quoting Works of James 
Madison, Madison to Edmund Pendleton, Sept. 14, 1789). The pas­
sage suggests that the area from which the early courts drew 
jurors was never smaller than a county. Other courts have not 
relied exclusively on this passage for an expansive interpretation 
of the fair-cross-section criterion and we are inclined to do the 
same.

No. 88-1590 9

At first glance, respondent’s position appears to corre­
spond with cases applying the sixth amendment to the 
federal jury selection system. According to the Supreme 
Court, the sixth amendment entitles a defendant to a jury 
drawn from the federal district in which the crime was 
committed, although the jury may be drawn from a divi­
sion of the district rather than the entire district. Com­
pare Ruthenberg v. United States, 245 U.S. 480, 482 (1918) 
and Salinger v. Loisel, 265 U.S. 224, 232, 235 (1924) with 
Barrett v. United States, 169 U.S. 218, 228-30 (1897). 
Lower courts have held therefore that a jury selection 
system satisfies the sixth amendment if the jury is selected 
from either the entire district or a division of that district. 
See United States v. Young, 618 F.2d 1281, 1287-88 (8th 
Cir.), cert, denied, 449 U.S. 844 (1980); United States v. 
Florence, 456 F.2d 46, 49 (4th Cir. 1972); Katz v. United 
States, 321 F.2d 7, 9 (1st Cir.), cert, denied, 375 U.S. 903 
(1963). Two circuits have even gone so far as to hold that, 
when a district is divided into divisions, a defendant may 
be tried in a division different than the division where 
the crime was committed. See United States v. Mase, 556 
F.2d 671, 675 (2d Cir. 1977), cert, denied, 435 U.S. 916 
(1978); United States v. James, 528 F.2d 999, 1021 (5th 
Cir. 1976), cert, denied, 429 U.S. 959 (1976).4 5

The majority of jury selection systems in this litany of 
cases, however, complied with laws or court-imposed rules

5 For a discussion of the appropriate scope of grand jury selec­
tion, see United States v. Cates, 485 F.2d 26, 30 (1st Cir. 1974) 
(grand jury need not be drawn from the division in which the 
crime was committed); United States v. Grayson, 416 F.2d 1073, 
1076 (5th Cir. 1969), cert, denied, 396 U.S. 1059 (1970) (defendant 
may be indicted by grand jury drawn from division other than 
division in which crime was committed); Marvel v. Zerbst, 83 F.2d 
974, 977 (10th Cir.), cert, denied, 299 U.S. 518 (1936) (grand jury 
may be drawn exclusively from eastern division even though crime 
was committed in western); United States v. Brown, 281 F. Supp. 
31, 36-37 (E.D. La. 1968) (selection of grand jurors was properly 
limited to the seven parishes nearest to the court because jury 
selection system was random).



10 No. 88-1590

designating the area from which to draw the jury list.6 
A lawmaking body or court ascertained the area compara­
ble to the “ community” (the area from which the jury 
list must be drawn). In the case before this court, the 
area designated by the legislature and court does not coin­
cide with the area that respondent would have us desig­
nate as the community.7

6 The Supreme Court in Ruthenberg rejected the sixth amend­
ment challenge to a venire drawn from a division of the district, 
citing “ the plain text of the Sixth Amendment, the contemporary 
construction placed upon it by the Judiciary Act of 1789 expressly 
authorizing the drawing of a jury from a part of the district, and 
the continuous legislative and judicial practice from the beginning.” 
See 245 U.S. at 482. In United States v. Florence the Fourth Cir­
cuit stated, “ Since the [Jury Selection and Service Act of 1968] 
requires only that selection be made of jurors from the counties, 
parishes, or similar political subdivisions surrounding the place 
where the court is held—the precise designation to be determined 
by the court—it gives no right to a jury from the entire district 
where there is a plan encompassing divisions.” See 456 F.2d at 49 
(emphasis added). Likewise, the Eighth, Fifth, and Second Circuits 
dismissed defendants’ challenges to juries drawn from divisions 
of the district because Rule 18 of the Federal Rules of Criminal 
Procedure was amended to delete the previous requirement that 
a defendant be tried in the division in which the crime occurred. 
See Young, 618 F.2d at 1288; Mase, 556 F.2d at 675; James, 528 
F.2d at 1021. The only case in which the court did not arguably 
rely on court or legislatively created laws was Katz. Deciding that 
a jury selection system excluding prospective jurors west of Wor- 
chester County, Massachusetts was constitutional, the court cited 
the federal law and took “judicial notice that this [system] has 
been so for many years.” See 321 F.2d at 9.

7 The Illinois statute applicable to Cook County reads:
In single county circuits containing or which may hereafter 
contain more than one million inhabitants, jurors may be drawn 
from such parts of the county as determined by court rule to 
be most favorable to an impartial trial and not to incur unnec­
essary expense or unduly burden the citizens of any part of 
the county with jury service. Such rule may utilize established 
divisions within the county.

78 111. Ann. Stat.  ̂ 32.2 (Smith-Hurd).
(Footnote continued on following page)

No. 88-1590 11

To a large extent defining the community for purposes of 
the sixth amendment is an arbitrary decision. See Taylor,

1 continued
The circuit court of Cook County made the following rule with 

regard to jury selection:
(c) The following Parts of the County of Cook for the pur­
pose of drawing electors for jury service are determined to 
be most favorable to an impartial trial while not incurring un­
necessary expense nor unduly burdening the citizens of Cook 
County with jury service:

1. Part I the entire County
2. Part II Zip Code areas:
60004 60005 60007 60008 60010 60015 60016 60018
60022 60025 60029 60043 60053 60056 60062 60067
60068 60070 60076 60077 60090 60091 60093 60103
60104 60106 60120 60130 60131 60153 60160 60161
60162 60163 60164 60165 60171 60172 60176 60194
60195 60201 60202 60203 60204 60301 60302 60303
60304 60305 60601 60605 60606 60607 60610 60611
60612 60613 60614 60618 60622 60624 60625 60626
60630 60631 60634 60635 60639 60640 60641 60644
60645 60646 60647 60648 60651 60656 60659 60660.

3. Part III Zip Code areas:
60402 60406 60409 60411 60415 60419 60422 60425
60426 60429 60430 60438 60439 60443 60445 60452
60453 60454 60455 60456 60457 60458 60459 60461
60462 60463 60464 60465 60466 60469 60471 60473
60475 60476 60477 60480 60482 60501 60513 60521
60525 60534 60546 60558 60608 60609 60615 60616
60617 60619 60620 60621 60623 60627 60628 60629
60632 60633 60636 60637 60638 60642 60643 60649
60650 60652 60653 60655 60658.

(d) Electors shall be summoned to jury service to a facility
within that Part of the County from which their names were 
drawn. The Chief Judge shall by order fix places for ap­
pearance in response to summons for jury duty and for the 
assembly of jurors consistent with (c) above.
(e) Excuse. The Chief Judge or his designate shall have 
charge of excusing jurors from jury service, impaneling them, 
regulating their assignment to the various judges, and super­
vising the recording of their services.

Circuit Court Rules of Cook County 0.4(c).



12 No. 88-1590

419 U.S. at 537 (“ [Communities differ at different times 
and places. What is a fair cross section at one time or 
place is not necessarily a fair cross section at another time 
or a different place.” ) County lines or federal district lines 
do not magically determine the parameters of a commu­
nity. We believe, however, that because the decision is 
somewhat arbitrary, it is a decision that should be left 
when possible to a body authorized to legislate on such 
matters. A well-intentioned jury supervisor, or this court 
for that matter, should not redefine the area from which 
the legislature has ordered the jury list to be drawn with­
out a lawful justification. It is precisely because an Illinois 
law has stipulated the areas from which juries are to be 
drawn that defendant is entitled to a venire fairly and 
reasonably representative of that area.8

Few cases discuss the scope of the community for pur­
poses of sixth amendment analysis but the few decisions 
that expressly address the issue permit the legislature to 
define the community as an area larger than a suburb 
or neighborhood. See Bradley v. Judges o f  Superior Court 
for Los Angeles County, 531 F.2d 413, 417 (9th Cir. 1976); 
Alvarado v. State, 486 P.2d 891, 901 (Alaska 1971); c f  Jef­
fers v. United States, 451 F. Supp. 1338, 1346 (N.D. Ind. 
1978) (“ community”  as used in Jury Selection and Ser­
vice Act refers to entire division or district, not merely 
a city).

8 The Illinois circuit court rules permit the county to draw jurors 
from three areas—the county in its entirety, the northern half of
Cook County based on jurors’ zip codes, or the southern half, again
determined by zip code. See Circuit Court Rules of Cook County 
0.4. W e do not intend, by our decision here today, to call into ques­
tion the second and third options which divide Cook County ap­
proximately in half. The circuit court’s division of Cook County 
fully conforms with our holding here which merely requires that 
state employees and prospective jurors maintain the community 
as designated by the court- and legislatively-chosen jury selection 
rules once those rules have been established.

No. 88-1590 13

While some courts permit the jury to be drawn from 
a more limited area than the county or division, no court 
has faced a situation in which prospective jurors, once 
gathered through a process of random selection, divided 
themselves into smaller units according to convenience.9 * 
Court employees or prospective jurors can not redefine 
community, once it has been implicitly defined by the 
legislature or state court, without violating the principle 
behind the fair-cross-section criterion. The language of the 
sixth amendment itself supports this conclusion. The sixth 
amendment states “ a defendant . . .  is entitled to a trial 
. . . by an impartial jury of the state and district . . ., 
which district shall have been previously ascertained by 
law.”  This language suggests that a legislature or court 
should determine the geographic scope of the community 
prior to a court challenge to the jury selection system. 
See, e.g., Bradley v. Judges o f  Superior Court, 372 F. 
Supp. 26, 31 (C.D. Cal. 1974), affd  in part and dismissed 
in part, 531 F.2d 413 (9th Cir. 1976) (county-wide jury

9 A  case similar to ours but nevertheless suggesting that the 
court gave tacit approval to a clerk who drew the pool of jurors 
from an area smaller than the district came before the famous 
Judge Learned Hand in United States v. Gottfried, 165 F.2d 360, 
364-365 (2d Cir.), cert, denied, 333 U.S. 860 (1948). In Gottfried 
the clerk’s office drew jurors from three of the counties within 
the federal district. The defendant argued that this draw was 
never sanctioned by court rule and excluded rural jurors. Judge 
Hand reasoned that the practice had been in place for over ten 
years and the courts had in the past treated the practice as though 
imposed by a court order. Because the courts had tacitly condoned 
this division of the district, Judge Hand ruled that the area from 
which the clerk drew the jury was a lawful division. W e do not 
find Judge Hand’s decision dispositive in our case because the jury 
supervisor and prospective jurors here did not act under the tacit 
approval of the Illinois court or legislature. See also United States 
v. Evans, 526 F.2d 701, 706 (5th Cir.), cert, denied, 429 U.S. 818 
(1976) (Chief Judge’s clerks did not violate Jury Selection and Sen 
vice Act by failing to exempt qualified jurors). But see United 
States v. Kennedy, 548 F.2d 608, 609-10 (5th Cir. 1977), cert, 
denied, 434 U.S. 865 (1977) (permitting jurors to volunteer for se­
cond term of jury service violates Jury Selection and Service Act).



14 No. 88-1590

selection system valid because California statutes provide 
for trials by county).

This principle is evident from the courts’ prior approach 
to the fair-cross-section criterion. The Supreme Court, this 
court, and other federal courts have treated the communi­
ty in jury selection challenges as coextensive with the geo­
graphic area from which the court or legislature ordered 
the venire drawn. See, e.g., Duren v. Missouri, 439 U.S. 
357 (1979); Taylor v. Louisiana, 419 U.S. 522 (1974); Peters 
v- Kiff, 407 U.S. 493 (1972); Carter v. Jury Commission, 
396 U.S. 320, 322 (1969); Glasser v. United States, 315 
U.S. 60 (1942); Smith v. Texas, 311 U.S. 128 (1940); Ru- 
thenberg v. United States, 245 U.S. at 482 (1918); Gibson 
v. Zant, 705 F.2d 1543 (11th Cir. 1983); United States v. 
Brady, 579 F.2d 1121, 1133 (9th Cir.), cert, denied, 439 
U.S. 1074 (1978); Bradley, 531 F.2d at 415; United States 
v. Buchanan, 529 F.2d 1148, 1151 (7th Cir. 1975), cert, 
denied, 425 U.S. 950 (1976); United States v. Titus, 210 
F.2d 210, 212-13 (2d Cir. 1954); Yoho v. United States, 
202 F.2d 241, 242 (9th Cir. 1953); Jeffers v. United States, 
451 F. Supp. 1338, 1346 (N.D. Ind. 1978); United States 
v. Broum, 281 F. Supp. 31, 33 (E.D. La. 1968); People v. 
Flores, 2 Cal. App. 3d Supp. 19, 24-26, 133 Cal. Rptr. 759 
(1976); Adams v. Superior Court, 27 Cal. App. 3d 719, 
723, 728, 104 Cal. Rptr. 144 (1972).10

We do not believe that the “ convenience questions” 
asked by the jury supervisor were part of a court- or 
legislatively-sanctioned system. Nothing in the record sug­
gests that the Illinois legislature or courts authorized the 
jury supervisor to delineate the community through the 
“ convenience questions.”  The Illinois statute and Cook 
County circuit rules describing the jury selection pro-

10 The Klcvcnth Circuit, with regard to the community standards 
instructions in an obscenity case, found the community should em­
brace that area from which the jury is drawn and selected. See 
United States v. Baynell, 679 F.2d 826, 835-36 (11th Cir. 1982), 
cert, denied. 460 U .S 1047 (1983).

No. 88-1590 15

cedure do not grant authority to the jury supervisor to 
further narrow the geographic scope from which the jury 
list is drawn.11 The statute and circuit court rules specifi­
cally designate the court and jury commissioners as the 
parties responsible for the jury selection process. See Peo­
ple ex rel. Lasecki v. Traeger, 374 111. 355, 359-60, 29 
N.E.2d 519 (1940) (upholding delegation of jury selection 
authority to commissioners and judges); People v. John­
son, 154 111. App. 3d 301, 507 N.E.2d 179 (1987) (dele­
gation of jury selection authority to county judges and 
jury commissioners is constitutionally valid); People v. 
Reed, 108 111. App. 3d 984, 439 N.E.2d 1277 (1982) (court 
strictly construes power of county employee to process 
computer program for juror selection outside presence of 
jury commissioners). In fact, the circuit court rules give 
explicit instructions as to the areas from which the venires 
are to be drawn, and the Illinois courts have voiced ap­
proval for the county-wide jury selection option. See Peo­
ple v. Fort, 133 111. App. 2d 473, 273 N.E.2d 439, 446 
(1971) (“ the County of Cook is a reasonable geographic 
area from which to draw jurors” ); People v. Free, 112 111. 
2d 154, 492 N.E.2d 1269, cert, denied, 479 U.S. 871 (1986) 
(court implicitly defines Du Page county as community for 
sixth amendment analysis).

Respondent cites Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 
1976), to support the proposition that Cook County is not 
the proper community for sixth amendment analysis. In 
Zicarelli, an assignment judge, appointed by the Chief 11

11 The Circuit Court Rules of Cook County state:
(b) Petit jurors. The Chief Judge or his designate shall cer­
tify to the clerk of the court the number of petit jurors re­
quired each month. Persons summoned for service as petit 
jurors shall be called for the Monday of each week and shall 
serve for a period of two weeks. Any judge or associate judge 
may extend the term of any petit jury or jurors from time 
to time as justice may require.

Circuit Court Rules of Cook County 0.4(b). See also III. Rev. Stat., 
ch. 78, 1 32.2, § 9.2 (effective 1981).



16 No. 88-1590

Justice of the New Jersey Supreme Court and in accor­
dance with New Jersey statute, designated the venue of 
a trial of a defendant indicted by grand jury. See id. at 
468. By changing venue, the assignment judge moved the 
defendant’s trial from the county in which his crimes oc­
curred to a second county and to a jury drawn exclusively 
from the second county. The Zicarelli court found that 
“ the Sixth Amendment prohibits courts only from obtain­
ing petit jurors from beyond the boundaries of two large 
units, the state and the federal judicial district.”  Id. at 
481.

We do not believe that our holding here and the posi­
tion of the Third Circuit in Zicarelli are inconsistent. In 
Zicarelli a judge, acting under the authority and review 
of the court, balanced concern for the safety of witnesses 
and concern for court efficiency with the right to trial in 
the county where the crime was committed. In his claim 
before this court, Davis does not question the court’s 
power to intervene in the jury system if overriding con­
cerns exist but challenges a jury supervisor’s authority 
to redefine the community for purposes of sixth amend­
ment analysis without the authority of the court or legis­
lature. Unlike the decisions of the judge in Zicarelli, the 
jury supervisor was not acting with the court’s authority. 
Furthermore, the Third Circuit’s decision in Zicarelli v. 
Gray preceded the Supreme Court’s decision in Duren v. 
Missouri, 439 U.S. 357 (1979). We do not find Zicarelli 
dispositive on the issue of community.

Similarly, we find unpersuasive respondent’s reliance on 
this court’s decision in United States v. Clancy, 276 F.2d 
617 (7th Cir. 1960), rev’d on other grounds, 365 U.S. 312 
(1961). Respondent cites Clancy for the proposition that 
this court “ has found nothing wrong with a method of 
selecting juries that excluded prospective jurors not liv­
ing within a reasonable distance from the courthouse.” 
In Clancy, a defendant challenged a jury selection process 
in which the jury commissioner and his clerk sorted the 
names of potential jurors according to the distance they 
lived from the plan at which the grand and petit juries

No. 88-1590 17

were to sit. The commissioner’s actions were governed 
by 28 U.S.C. § 1864 (1948) (amended 1968) which at that 
time ordered, “ the names of grand and petit jurors shall 
be publicly drawn from a box containing the names of not 
less than three hundred qualified persons.” 28 U.S.C. § 1864 
(1948) (amended 1968).

We find this case distinguishable for a number of reasons. 
In Clancy this court decided that defendant failed to file 
a motion to dismiss the grand jury indictment and a chal­
lenge to the array within the proper period of time. See 
id. at 631-32; see also Scales v. United States, 260 F.2d 
21, 45-46 (4th Cir. 1958) affd, 367 U.S. 203 (1961). The 
subsequent discussion of the jury selection process used 
is dicta. Furthermore, the jury commissioner in Clancy 
acted pursuant to a statute that outlined jury selection 
in very little detail; here the Illinois statute was explicit 
as to the area from which to obtain the jury list. Com­
pare 111. Rev. Stat., ch. 78, f  32.2, § 9.2 (effective 1981) 
and Circuit Rules of Cook County 0.4(c) with 28 U.S.C. 
§ 1864 (1948) (amended 1968). More importantly, the Clan­
cy court did not address the sixth amendment issue but 
merely concluded that 28 U.S.C. § 1864 did not prohibit 
this method of jury selection. See Clancy, 276 F.2d at 632. 
As in Zicarelli, this case predated the Supreme Court’s 
decision in Duren v. Missouri and therefore preceded 
much of the Supreme Court’s development of sixth amend­
ment analysis. We find the case of little precedential 
value.

We agree with the respondent that, when defining the 
community from which the jury must be drawn, the court 
or legislature may consider convenience to the jurors. 
See People v. Johnson, 154 111. App. 3d 301, 507 N.E.2d 
179 (1987) (“ Dividing a county into parts and drawing 
jury venires from one part of the county for cases at 
one court facility and from another part for cases at 
another facility does not per se . . . deny defendants an 
impartial trial.” ) The legislature or court, however, must 
make that decision prior to a court challenge such as this 
one. To redefine the scope of the community after the 
legislature has implicitly laid out the scope of the com­



18 No. 88-1590

munity undermines the fair-cross-section criterion of the 
sixth amendment.12

We do not decide today the constitutionality of a court 
or legislature’s actions in the creation of a jury selection 
system. Prior decisions indicate that those bodies must 
create the jury selection system with an eye to the pol­
icies of fairness and inclusiveness. See, e.g., Taylor v. 
Louisiana, 419 U.S. 522 (1975); United States v. Test, 550 
F.2d 577, 594 (10th Cir. 1976); Alvarado v. State, 486 P.2d 
891 (Alaska 1971). Likewise those bodies are entitled to 
take into consideration the convenience of jurors when 
delineating the jury pool. See Uyiited States v. Brown, 281 
F. Supp. at 33. We need not decide the constitutionality 
of the jury system as it was created in Cook County for 
that is not in dispute here. The defendant questions the 
constitutionality of the jury supervisor’s application of the 
principles set down for him by the Cook County circuit 
court and the Illinois legislature. Cf. United States v. 
Gometz, 730 F.2d 475, 480 (7th Cir. 1984), cert, denied, 
469 U.S. 845 (1984) (defendant challenges clerk’s applica­
tion of the federal jury selection act).

3. Sixth and Fourteenth Amendment Policy
The history of jury selection challenges suggests that it 

is often in the application of jury selection laws that the 
gravest violations to the right to a fair and impartial jury 
occur. See, e.g., Castaneda v. Partida, 430 U.S. 482, 497 
(1976); Tamer v. Fouche, 396 U.S. 346, 360 (1970); Nor­
ris v Alabama, 294 U.S. 587 (1935); United States v. 
Gometz, 730 F.2d 475, 479 (7th Cir. 1984). Processes which 
permit human subjectivity to influence an objective, ran­

12 T h e  S u p rem e C ourt faced a similar problem in Carter v. Jury 
C om m ission , 396  U.S. 320  (1969). In Carter the Court found that 
the jurv clerk and commissioner abused the discretion that the 
Alabama jure selection statute conferred on them in preparing the 
jury roll but held that the statute itself was not unlawful on its 
face.

No. 88-1590 19

dom system often foster biased results. Regardless of the 
good intentions of the persons in charge of jury selection, 
their interplay with the system necessarily skews the sys­
tem established by a court or legislative body. Those in­
tentions have not always been as honorable as the jury 
supervisor’s were in this case. To permit Cook County 
jurors to define the community in which they serve based 
on convenience undermines the objectivity of the jury se­
lection system.

Likewise a narrow definition of community could under­
mine the policy of inclusiveness underlying the sixth amend­
ment. Smith v. Texas, 311 U.S. 128, 130 (1940); Glasser 
v. United States, 315 U.S. 60, 85 (1942). The Supreme 
Court established the fair-cross-section-of-the-community 
criterion, not to exclude minorities, but to increase their 
participation in the system. The Supreme Court states:

[T]he purpose of a jury is to guard against the exer­
cise of arbitrary power—to make available the com- 
monsense judgment of the community as a hedge 
against the overzealous or mistaken prosecutor and 
in preference to the professional or perhaps overcon­
ditioned or biased response of a judge. . . . This pro­
phylactic vehicle 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. 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.

Taylor v. Louisiana, 419 U.S. at 531 (citations omitted); 
Teague v. Lane, 820 F.2d 832, 838 (7th Cir. 1987). When 
prospective jurors choose to serve near their homes they 
do not consider the broader policy of inclusiveness critical 
to the sixth amendment. A legislature or court, however, 
analyzing the jury selection system with objective debate 
and reflection, may establish a community that includes



20 No. 88-1590

a cross section of diverse groups of people living within 
a reasonable distance from one another.13

4. Application to the Record
In reviewing a grant of summary judgment, we apply 

the same standard as the district court. Richardson v. 
Penfold, 839 F.2d 392, 394 (7th Cir. 1988). We must draw 
all reasonable inferences regarding undisputed facts in the 
light most favorable to the nonmovant. Conner v. Rein- 
hard, 847 F.2d 384, 396 (7th Cir.), cert, denied, 57 U.S. 
L.W. 3233 (1988). “ Summary judgment is proper only 
when the moving party has established that there is no 
genuine issue of material fact and he is entitled to judg­
ment as a matter of law.” Roman v. United States Postal 
Service, 821 F.2d 382, 385 (7th Cir. 1987).

Defendant submitted 1980 census figures indicating that 
blacks constituted 25.6% of the population of Cook Coun­
ty. The record indicates that none of the forty persons 
eligible for defendant’s jury were black. This court must 
consider whether a venire containing no black members 
was fair and reasonable in relation to a community where 
over one quarter of the population is black.

The validity of defendant’s claim rests on the validity of 
his statistics. The census figures arguably are overinclusive 
because they include children and other persons ineligible 
for jury service. The majority of jury discrimination cases 
that we found compare the adult voting population with the

13 This court in an obscenity case suggested that the district court 
on remand consider the community standards of an area larger 
than the City of Chicago because diversity was significant to a 
definition of community. See United States v. Various Articles oj 
Merchandise, Seizure No. 170, 750 F.2d 596, 600 n.4 (7th Cir. 
1984). On remand th e  district court used the Chicago metropolitan 
area as the community due to the ease of transportation and in­
teraction between th e  City of Chicago and residents of the sur­
rounding suburbs. See United States v. Various Articles of Mer­
chandise. Seizure Ye. 187, 625 F. Supp. 861 (N.D. 111. 1986).

No. 88-1590 21

jury lists drawn. See, e.g., Duren v. Louisiana, 439 U.S. 
at 361-62; Whitus v. Georgia, 385 U.S. 545, 552 (1967); 
Porter v. Freeman, 577 F.2d 329, 330 (5th Cir. 1978); 
Savage v. United States, 547 F.2d 212, 215 n.5 (3d Cir. 
1976), cert, denied, 430 U.S. 958 (1977); Murrah v. Ar­
kansas, 532 F.2d 105, 107 (8th Cir. 1976); United States 
v. Test, 550 F.2d 577 (10th Cir. 1976); United States v. 
diTommaso, 405 F.2d 385, 388 (4th Cir. 1968), cert, denied, 
394 U.S. 934 (1969); United States v. Armsbury, 408 F. 
Supp. 1130 (D. Or. 1976). The overinclusiveness of defen­
dant’s statistic calls into question the weight a court should 
give to this evidence of unfair and unreasonable represen­
tation on the venire.

This is not to say, however, that defendant has failed 
to prove that blacks were underrepresented on the venire. 
The Supreme Court, using raw census statistics that in­
cluded the underaged and unqualified, held that a 23% 
disparity in the general population and the number of 
blacks on a grand jury showed unconstitutional discrimina­
tion against blacks. See Turner v. Fouche, 396 U.S. 346, 
349 (1970); see also Davis v. Zant, 721 F.2d 1478, 1481 
nn.2, 3 & 4 (11th Cir.), cert, denied, 471 U.S. 1143 (1983); 
Gibson v. Zant, 705 F.2d 1543, 1545 nn.2 & 3 (11th Cir. 
1983); People v. Jones, 9 Cal. 3d 546, 510 P.2d 705, 707, 
108 Cal. Rptr. 345 (1973). We recognize also that defen­
dant’s claim would be foreclosed if we mandated that he 
provide statistical evidence based solely on voter registra­
tion lists because those lists no longer indicate racial dis­
tinctions. The Supreme Court in Turner and other courts 
have recognized that defendant should not be expected 
to carry a prohibitive burden in proving underrepresen­
tation. See 532 F.2d at 108; United States v. Butera, 420 
F.2d 564, 569 n.13 (1st Cir. 1970). Raw census figures 
showing a disparity as large as 25% may establish that 
blacks were underrepresented on the jury list.

D. Systematic Exclusion
To satisfy the third prong of the Duren test, Davis must 

establish that the underrepresentation of blacks in the



22 No. 88-1590

venire is due to systematic exclusion of blacks in the jury 
selection process. We find that defendant’s proof of the 
third and final prong of the Duren test is not reliable and, 
therefore, reverse the district court’s grant of the peti­
tion for writ of habeas corpus. We further find that defen­
dant’s proof is so inadequate that he has failed to sur­
vive respondent’s motion for summary judgment.

In essence, Davis must prove that the jury selection sys­
tem operating in Cook County caused the disparity be­
tween the percentage of blacks on the jury lists in a sub­
urban courthouse and the percentage of blacks in Cook 
County. Davis submitted the deposition of Mr. Covelli, 
the jury supervisor, who stated that he normally asked 
jurors whether they found the suburban courthouses con­
venient. Davis also supplied the affidavit of a statistician 
that suggested that the chances of drawing an all-white 
venire, such as this one, through random selection were 
almost infinitesimal. Finally Davis provided census figures 
on the racial composition of the suburbs and surrounding 
neighborhoods that would explain where the jurors came 
from if not chosen randomly.

The respondent contests that this evidence establishes 
the third prong of the Duren test. In particular, respon­
dent argues that defendant should have derived his statis­
tical evidence from the voting population. The respondent 
also noted that the jury supervisor testified he could not 
remember if he asked the prospective jurors in Davis’s 
case whether Des Plaines was convenient. Furthermore, 
there is no direct evidence, assuming the “ convenience 
questions” were asked here, that any members of Davis’s 
venire were volunteers. Defendant did not submit any evi­
dence as to the residency of the jurors on the jury list.

We find that Davis’s statistical evidence is insufficient 
to establish that the Cook County jury selection system 
systematically exc luded blacks in his case. As we noted 
above, the propel- pool for consideration here is not the 
entire population of Cook County but the population eligi­
ble for jury duty. This would exclude children and those

No. 88-1590 23

unqualified to participate in the selection process in Illi­
nois. If blacks are underrepresented on the jury list be­
cause of legitimate juror qualifications, such as age, then 
the Cook County jury selection system does not unconsti­
tutionally exclude blacks. Defendant’s statistical evidence 
that this venire could not have been selected but for a 
nonrandom system fails to take into account that some 
exclusion of a percentage of the general population is con­
stitutional if based on the population’s qualifications for 
jury service. Because Davis’s statistical evidence is based 
on general census figures, it does not tell us how much 
of the disparity comes from constitutional juror qualifica­
tions. The statistical evidence is, therefore, overinclusive.

Furthermore Davis does not consider our prior decision 
that voter lists are not an improper source from which 
to draw a pool of jurors. See United States v. Koliboski, 
732 F.2d 1328, 1331 (7th Cir. 1984). Although Koliboski 
addressed compliance with the federal jury selection act, 
the federal courts that have addressed the constitutional­
ity of voter registration lists are unanimous that a state 
may constitutionally draw its jurors using voter lists. See, 
e.g., Murrah, 532 F.2d at 106; United States v. James, 
528 F.2d 999, 1022 (5th Cir.), cert, denied, 429 U.S. 959 
(1976); United States v. Lewis, 472 F.2d 252 (3d Cir. 1973); 
Savage v. United States, 547 F.2d 212, 215 n.5 (3d Cir. 
1976), cert, denied, 430 U.S. 958 (1977); United States v. 
Freeman, 514 F.2d 171, 173 (8th Cir. 1975); United States 
v. Gaona, 445 F. Supp. 1237, 1239-40 (W.D. Tex. 1978); 
United States v. Ramos Colon, 415 F. Supp. 459, 464 (D. 
P.R. 1976). The Constitution permits a limited amount of 
disparity between the racial makeup of the community at 
large and the venire if caused by the use of voter registra­
tion lists. Defendant’s statistical evidence does not adjust 
for the disparity that could be credited to this constitu­
tionally permissible discrepancy. Davis’s statistical evi­
dence has failed to establish that the jury supervisor’s 
“ convenience questions”  caused the underrepresentation 
of blacks on Davis’s venire. Without adjusting for the per­
missible discrepancy caused by juror qualifications and the



24 No. 88-1590

use of voter lists, Davis has not presented reliable sta­
tistical evidence.

We agree with the respondent that the district court 
erred in granting summary judgment with regard to this 
third prong of the Duren test. Unable to rely on defen­
dant’s statistic, we find that Davis has failed to establish 
that systematic exclusion of blacks caused the imbalance 
in Davis’s venire. Davis has not provided any direct evi­
dence as to how many jurors in his venire volunteered, 
or uncontroverted evidence that the “ convenience ques­
tions” were asked in this case. We are not even certain 
if the prospective jurors in Davis’s case actually came 
from the northwest side of Chicago and the northwest 
suburbs. Furthermore, Davis has not offered any proof, 
beyond the record from one prior case, that a pattern of 
exclusion existed in the Des Plaines courthouse. C f Tim- 
mel v. Phillips, 799 F.2d 1083, 1087 (5th Cir. 1986) (“ a 
one time example of underrepresentation of a distinctive 
group wholly fails to meet the systematic exclusion ele­
ment in Duren” ). Without proof that the jury supervisor’s 
actions caused underrepresentation on the venire or proof 
of systematic underrepresentation in the suburban court­
houses, we must deny defendant’s motion for summary 
judgment.14

14 A s the dissent points out, the state judge in a pre-trial hear­
ing refused to ask the jurors how they were selected to sit in Des 
Plaines. The dissent argues that this deprived Davis of the op­
portunity to establish a record of systematic exclusion and 
therefore the burden of proof should shift to the State to prove 
that the jury selection system did not systematically exclude 
blacks. The dissent suggests that the burden should now shift to 
the State because “ (alppellee has supplied a plausible explanation” 
for the all-white jury and the state judge failed in his duty to con­
sider Davis’s claim before the trial began.

The record shows, however, that Davis’s counsel gave the state 
judge very little support for the claim. Davis’s counsel submitted 
a written motion to dismiss the array immediately before the jury 
was to be selected. In his written motion, he stated that the array 

(Footnote continued on following page)

No. 88-1590 25

14 continued
was composed of people who lived in northwest suburbs and the 
northwest side of Chicago and noted that there were no black 
jurors in the array. He then asked the court to take judical notice 
that the array was composed of people from areas of Cook Coun­
ty populated predominantly by whites. See Petitioner’s Statement 
of Undisputed Material Facts, App. A. The state judge asked 
Davis’s counsel for some proof to back his claim. Davis’s counsel 
stated:

[W]e have gone over the [juror] cards, and we submit that the 
radius comprised is predominantly white suburbs, [n]orthwest.

Chicago, Cook County is a very wide, very big area. It has 
diverse people throughout. Most of them live in a particular 
area. As I know the city and some suburbs, Judge, these 
jurors were not selected from any of the parts of the city or 
Cook County where they have predominantly black people. 
The Court can see a couple of them are from Des Plaines, Mt. 
Prospect, Winnetka, Glenview, Skokie, Palatine, Schiller Park, 
Wilmette, Brookfield, . . . and the rest are from Chicago.

I’m sure the Court knows Chicago. Chicago is split into ob­
viously different areas. All of these jurors that I looked at 
the cards [for] were from the northwest section of Chicago. 

Petitioner’s Statement of Undisputed Material Facts, App. B. At 
most, Davis’s counsel offered conclusory statements and recited 
the names of some northwest suburbs as proof that blacks had 
been systematically excluded. Counsel attached no written af­
fidavits to his motion. He failed to specify how many jurors came 
from each area and what parts of the city of Chicago were rep­
resented. According to the limited explanation that Davis’s counsel 
gave to the state judge, three-fourths of the members of the venire 
could have come from the city of Chicago itself, an area that 
counsel himself suggests is diverse. Counsel’s statements to the 
court were vague and conclusory. In addition, he provided no evi­
dence of the racial makeup of the areas from which the jurors 
allegedly were chosen. Davis’s counsel gave the judge his own 
assessment of the geographical background of the members of the 
array without any factual analysis of the juror cards.

It is true that Davis’s counsel also described an earlier trial in 
which jurors were asked if Des Plaines was convenient, but the 
judge refused to rely on comments about another trial as proof. 
See Petitioner’s Statement of Undisputed Material Facts, App. B.

(Footnote continued on following page)



26 No. 88-1590

The inadequacies found in defendant’s proof raise the 
tangential issue of whether defendant has now survived 
the respondent’s motion for summary judgment. “ Summary 
judgment is appropriate where a party ‘fails to make a 
showing sufficient to establish the existence of an element 
essential to that party’s case, and on which that party 
will bear the burden of proof.’ ” Teamsters Local 282 Pen­
sion Trust Fund v. Angelos, 839 F.2d 366, 369 (7th Cir. 
1988) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 
(1986)). Defendant had the burden of establishing that sys­
tematic exclusion caused the underrepresentation of blacks 
on the jury venires in areas of Cook County. We believe 
that defendant’s statistical proof is not reliable and his 
remaining evidence, at best, weakly supports his claim. 
Without proof that establishes the link between the jury 
supervisor’s general practices and the venire drawn in 14

14 continued
This was not unreasonable, particularly because Davis’s counsel 
did not tell the judge the name of the case or when it took place.

Even with the gift of hindsight, we find it difficult to determine 
the likelihood that Davis’s venire resulted from systematic exclu­
sion based on the evidence provided. W e can not fault the state 
judge, when faced with even less proof and a full docket, for refus­
ing to delay the trial in order to question each individual juror 
on a claim which was far from obvious.

More importantly, Davis failed to record where each member 
of the venire resided, even though the record shows that counsel 
was in possession of the juror cards containing such information. 
See Petitioner’s Statement of Undisputed Material Facts, App. B. 
Davis could have made an offer of proof at the time the judge 
denied the motion to dismiss the array. Instead, the record con­
tains no information regarding the residences of the members of 
the venire. Given Davis’s inadequate em anation of why the jurors 
should be questioned separately and his own failure to create the 
record, we cannot say the State deprived Davis of the means to 
establish systematic exclusion. W e disagree with the dissent. The 
state judge’s failure to question the jurors individually does not 
require that we shift the burden of proof to the State when Davis 
had adequate opportunity to establish the record himself, even 
though the trial judge did not question the jurors.

No. 88-1590 27

Davis’s case or evidence of systematic underrepresenta­
tion, Davis has not established that the Cook County juiy 
selection system systematically excluded blacks.

Given the disposition of this case, we need not address 
respondent’s argument that the alleged error was harm­
less beyond a reasonable doubt. See Chapman v. Califor­
nia, 386 U.S. 18 (1967). Accordingly, we reverse the dis­
trict court’s grant of a petition for writ of habeas corpus 
to Davis on a motion for summary judgment, and we re­
mand to the district court for entry of summary judgment 
in favor of the respondent.

Reversed.

F laum, Circuit Judge, dissenting:
This case presents the difficult.jurisprudential question 

of whether the Appellee’s sixth amendment right to a jury 
venire composed of a representative cross-section of the 
community was violated under the Supreme Court’s deci­
sional commands in this troublesome area of the law. In 
order to prove a prima facie case of such a violation, the 
Appellee has to show three things: (1) that blacks are a 
distinctive group in the community; (2) that black repre­
sentation on jury venires was not fair and reasonable in 
relation to their numbers in the community; and (3) that 
the underrepresentation resulted from systematic exclu­
sion of blacks. See Duren v. Missouri, 439 U.S. 357, 364 
(1979). The majority concludes, through succinct, well- 
reasoned analysis with which I agree, that the Appellee 
has successfully met the first two requirements. The ma­
jority also finds, however, that the Appellee’s proof of 
systematic exclusion is wanting so that summary judg­
ment should be entered for the Appellant. With that I 
cannot agree. I believe that the Appellee has successful­
ly made out a prima facie case that his sixth amendment 
right to a jury selected from a venire made up of a cross- 
section of the legislatively mandated community has been



28 No. 88-1590

violated. Since the state has failed to rebut that prima 
facie case by showing a significant state interest justify­
ing the underrepresentation, I respectfully dissent.

The majority advances two arguments in support of its 
finding that the Appellee failed to show that the under­
representation of blacks on his venire was due to system­
atic exclusion. First, the majority states that the Appel­
lee’s statistics do not prove systematic exclusion because 
they are based on raw census data rather than voter eli­
gibility data. This position apparently assumes that statis­
tics can be used to show systematic exclusion and finds 
a deficiency only in the kind of statistics offered by the 
Appellee. I conclude that statistics, standing alone, can 
seldom, if ever, establish systematic exclusion. Permitting 
a person to prove systematic exclusion through the use of 
statistics effectively merges the second Duren requirement, 
that there was underrepresentation given the groups num­
bers in the community, with the third requirement. Thus, 
I believe it is not relevant in this case, at least for pur­
poses of proving systematic exclusion, that the Appellant 
relied on census data as opposed to voter eligibility data.

Second, the majority finds that the Appellee has failed 
to produce any direct evidence of systematic exclusion in 
his particular case. For example, the majority points out 
that there is no evidence that the jury supervisor actually 
asked the “ convenience questions” to the veniremembers 
in this case, that anyone actually volunteered to go to the 
Des Plaines courthouse, or that the venire was made up 
of people who resided near the courthouse. But all these 
areas might have been explored had the state court judge 
acceeded to the Defendant’s request for an evidentiary 
hearing to determine the cause of the all-white venire. 
Given that denial by the state trial court, I believe it be­
comes incumbent upon the state, at least in this case 
where the Appellee has supplied a plausible explanation 
for the underepresentation of blacks on his venire, to show 
that blacks were not systematically excluded from the 
venire. Since the state has failed to show that the exclu­

No. 88-1590 29

sion was the result of some neutral factor unrelated to 
the jury selection system, that burden has not been met.

Nor is it likely that the state could succeed in justify­
ing the underrepresentation if there were a remand for 
purposes of an evidentiary hearing. Mr. Covelli, the jury 
supervisor, testified that he cannot remember whether he 
asked the “ convenience questions” to the potential venire- 
members in this particular case. Also, there apparently 
is no information remaining on the geographic makeup of 
the veniremembers actually selected. Thus, on the law as 
mandated by the Supreme Court and the facts produced 
here, where the trial court refused to provide an eviden­
tiary hearing to the Appellant to discover the reason why 
40 whites made up his venire and where no neutral reason 
was advanced by the state to account for this venire, I 
am forced to conclude that the systematic exclusion prong 
of Duren has been established.1

1 The majority also states that the Appellee has failed to show 
systematic exclusion since “ Davis has not offered any proof, be­
yond the record from one prior case, that a pattern of exclusion 
existed in the Des Plaines courthouse.” Other courts have also 
held that in order to prove systematic exclusion, evidence must 
be adduced from more than just the case at bar. See Timmel v. 
Phillips, 799 F.2d 1083, 1086-87 (5th Cir. 1986) (“ One incidence 
of a jury venire being disproportionate is not evidence of a ‘sys­
tematic’ exclusion.” ); Euell v. Wyrick, 714 F.2d 821, 823 (8th Cir. 
1983) (“ [w]e could end our inquiry [as to systematic exclusion] by 
stating that Euell has failed to prove a general underrepresenta­
tion of women”). Still, I believe that following Batson v. Kentucky, 
106 S. Ct. 1712 (1986), systematic exclusion can be shown based 
on the evidence from a single case.

In Batson, the Supreme Court rejected its earlier pronounce­
ment, made in Swain v. Alabama, 380 U.S. 202 (1965), that an 
equal protection violation based on a prosecutor’s use of his per­
emptory challenges could only be proved by evidence that the per­
emptory challenges were used to strike a particular group in “case 
after case.” According to the Court in Batson, the evidentiary re­
quirement of Swain created an insurmountable burden for defen­
dants. Thus, the Court rejected Swain’s evidentiary requirement 

(Footnote continued on following page)



30 No. 88-1590

In sum, I think that the Appellee has shown a prima 
facie case of a violation of his sixth amendment right to 
a jury venire made up of a cross-section of the communi­
ty. Therefore, I would affirm the judgment of the district 
court.

A true Copy:
Teste:

Clerk o f  the United States Court o f  
Appeals for the Seventh Circuit 1

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1 continued
and held instead that a defendant could make out a prima facie 
case of an equal protection violation “by relying solely on the facts 
concerning the [venire] selection in his case.” 106 S. Ct. at 1722 
(emphasis in original).

Although Batson involved an equal protection claim, I believe 
that its reasoning would also extend to a case under the sixth 
amendment. In both sixth amendment and equal protection cases, 
the Court has been highly suspicious of instances of significant 
group undererepresentation “ where the selection mechanism is 
subject to abuse.” Id. In this case, the method of selecting venire- 
members was subject to abuse and, therefore, the Defendant can 
successfully show “ systematic exclusion” of blacks based solely on 
evidence from his own case.

USCA 79004—Midwest Law Printing Co., Inc., Chicago—2-1-89—500

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