Davis v. Warden Petition for Rehearing and Suggestion Rehearing En Banc
Public Court Documents
February 15, 1989

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Brief Collection, LDF Court Filings. Davis v. Warden Petition for Rehearing and Suggestion Rehearing En Banc, 1989. c4ea9e46-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/bb00feee-f9fd-4e93-ae4c-954a175bfdc7/davis-v-warden-petition-for-rehearing-and-suggestion-rehearing-en-banc. Accessed April 27, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT HURSEY DAVIS, Pe ti tioner-Appe1lae, V 3 . WARDEN, Joliet Correctiona1 Institution at Stateville; MICHAEL LANE, Director, Department of Corrections, Respondent-Appellants. ) Appeal from the United States ) District Court for the ) Northern District of Illinois, ) Eastern District of Illinois ) ) No. 85 C 4120 ) ) ) The Honorable James B. Parsons, ) Judge Presiding ) ) ) PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC Peter J. Schmiadel 343 South Dearborn #1507 Chicago, IL 60504 (312) 663-5046 Attorney for Petitioner-Appellee NO. 88-1590 * IN THE UNITED STATES COURT OF APPEALS * FOR THE SEVENTH CIRCUIT HURSEY DAVIS, Petitioner-Appallee, V 3 . WARDEN, Joliet Correctional Institution at Stateville; MICHAEL LANE, Director, Department of Corrections, Respondent-Appellants. ) Appeal from the United States ) District Court for the ) Northern District of Illinois, ) Eastern District of Illinois ) ) No. 85 C 4120 ) ) ) The Honorable James B. Parsons, ) Judge Presiding ) ) ) PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC Peter J. Schmiadel 343 South Dearborn #1507 Chicago, IL 60504 (312) 663-5046 Attorney for Petitioner-Appellee TABLE OF CONTENTS Page Table of Authorities» Argumen t........... i i 1 * I. REHEARING SHOULD BE GRANTED BECAUSE THE MAJORITY OPINION PLACES A BURDEN OF PROOF ON THE PETITIONER- APPELLEE IN THIS SIXTH AMENDMENT 'FAIR CROSS SECTION* CASE WHICH IS IN CONFLICT WITH PRIOR SUPREME SOURT DECISIONS AND THE DECISIONS OF OTHER CIRCUIT COURT OF APPEALS, INCLUDING BATSON VS. KENTUCKY, 106 S.CT 1712 (1986); AVERY vs. GEORGIA,~T55 U.S. &9l (1953); DUREN vs. MISSOURI; 439 U.S. 357 91979)............... 1 CONCLUSION 1 TABLE OF AUTHORITIES Page GASES Alexander vs. Louisiana, 405 U.S. 625 ( 1971)............... 5 Avery vs. Georgia, 345 U.S. 891 (1953)..................... 4,6,9,10 Ba tson vs. Ken tucky , 106 S.Ct. 17112 ( 1986)................ 5,6,7,9 Castanda vs. Partida, 430 U.S. 482 (1976).................. 5 Davis vs. Zant, 721 F.2d 14778 ( 11th Cir.) cert, denied 471 U.S. 1143 (1983).......................... 5 Duren vs. Missouri, 439 U.S. 357 (1979).................... 4,6 Taylor vs. Louisiana, 419 U.S. 522 (1979).................. 1,3 Teague vs. Lane, 820 F.2d 832 (7th Cir. 1987) cert, granted 99 L.ed 2d 268 ( 1988......................... 1 Texas Dept, of Community Affairs vs. Burdine, 450 U.S. 248 [1981)'.'.'............... 7..................... 6 Turner vs. Fouche, 396 U.S. 346 ( 1969)..................... 2,5 Whitus vs. Georgia, 385 U.S. 545 (1967).................... 5 ii REHEARING SHOULD BE GRANTED BECAUSE THE MAJORITY OPINION PLACES A BURDEN OF PROOF ON THE PETITIONER APPELLEE IN THIS 6th AMENDMENT 'FAIR CROSS SECTION' CASE WHICH IS IN CONFLICT WITH PRIOR SUPREME COURT DECISIONS AND THE DECISONS OF OTHER CIRCUIT COURT OF APPEALS, INCLUDING BATSON V. KENTUCKY, 106 S.CT. 1712 (1986); AVERY V. GEORGIA, 345 U.S. 891 (1953); DUREN V. MISSOURI, 439 U.S. 357 (1979). I. The Petitioner, Hursey Davis, a Black man, attacked his state court conviction in this Federal habeas corpus case on the grounds that the venire from which he had to select his petit jury did not represent a fair cross section of Cook County, the community from which the jurors were summoned. In his case Mr. Davis established that although Blacks comprised a significant portion of the county's population (25.6%) none of the 40 jurors summoned to his courtroom in the overwhelmingly white suburbs of Des Plaines were Black. Mr. Davis found this obvious and significant underrepresentation to be offensive to Sixth Amendment mandates that he be given "a fair possibility for obtaining a jury constituting a representative cross sec tion of the community." See Taylor vs. Louisiana, 419 U.S. 522, 529 (1975); Teague vs. Lane, 820 F.2d 832, 837 (7th Cir. 1987) cert, granted 99 L.Ed.2d 268 (1988).* Upon seeing the all white venire, counsel for Mr. Davis at his criminal trial both requested on evidentiary hearing and supplied the trial judge with an explanation for the all white venire; i.e. he was aware from another case recently heard in the same suburban *0f course in Mr. Davis' case the possibility oil selecting a petit jury with even one Black person, let alone a jury that actually approximated the community, was zero. 1 courthouse that a "convenience" factor was employed to direct jurors to court cites near their homes, and because the nor thern suburbs and north-west side of Chicago were overwhelming white and that many of the 40 venira-persons came from these areas, it appeared to him that this mechanism was utilized in Mr. Davis' case. Davis' counsel requested the judge to inquire as to whether the convenience mechanism was employed in Mr. Davis' case, the judge refused.* (Tr. Doc. 21, Appendix B, p. 230) Following the filing of his habeas petition Mr. Davis discovered from the jury commissioner responsible for the selection procedure in effect at the time of his trial that throughout the relevant period convenience factors were employed in urging jurors to volunteer to serve in suburban courthouses near their homes, including Des Plaines. As part of his motion for summary judgment in his habeas case Mr. Davis also supplied statiscal evidence demonstrating that it was virtually impossible to select 40 persons at random from Cook ★ ★County and have no Blacks included. In its decision the majority Panel in this case (See Davis * In his post trial motion counsel for Davis supplied the trial judge with the transcript of the case he referred to pre trial. The transcript demonstrated that in that case convenience factors were utilized to direct jurors to Des Plaines. The judge in that case granted a new trial to the Defendant, finding the procedure unconstitutional. **Petitioner's stati sties were based on comparing the total population of Cook County which is 25.6% Black with the makeup of Petitioner's venire, which contained no Blacks out of 40. This methodology has been specifically approved by the Supreme Court. See Turner vs. Fouche, 396 U.S. 346 (1969) 2 v 3. Warden , 88-1590 slip opinion (2-1-89) Judge Flaum dissenting, hereinafter Davis) recognized that the Petitioner's right to select from a venire that represented a fair cross section of the Cook County community was "an essential component of the Sixth Amendment right to a jury trial." Davis p. 4-5 quoting Taylor vs. Louisiana, 419 U.S. 522, 696 (sic), 528 (1975). The Panel's decision then went on to accept Petitioner's argument that the relevant community in Mr. Davis' case was the whole of Cook County. Davis slip opinion p. 12, 14. In its discussion of the appropriate comparative community for fair cross section purposes the Panel also explicitly recognized that the convenience/vo1untear system employed by the jury commissioner throughout 1981, the year of Mr. Davis' trial, impermissably narrowed "the geographic scope from which the jury list is drawn." Davis p. 15. The panel reasoned that because the Supreme Court's 6th Amendment decisions are designed to increase minority participation a "narrow definition of community could undermine the policy of inclusivaness underlying the Sixth Amendment..." and "when prospective jurors choose to serve near their homes they do not consider the broader policy of inclusiveness critical to the sixth amendment." Davis p.19. After accepting Petitioner's arguments that the relevant community was the whole of Cook County and that the convenience factors which were admittedly employed by the jury commissioner 3 unconstitutionally narrowed the definition of community for Sixth Amendment purposes the Panel went on to analyze whether Petitioner's evidence discharged his obligation under Duren vs. Missouri, 439 U.S. 357 (1979) to establish a prima facie viola tion of the Sixth Amendment's fair cross section requirement. Duren set out a three pronged test for determining whether a Defendant established a prima facie violation of the Sixth Amendment. The Panel's decision held that the Peitioner had successfully demonstrated that Blacks were a distinctive group in Cook County and that a 25.5% disparity between the number of Blacks in Cook County and the number on Petitioner's venire (0%) demonstrated that Blacks were in fact underrepresented on Petitioner's venire. Davis p. 5/ 21. The Panel ruled however the Petitioner failed to prove that the jury selection system actually caused the underrepresentation of Blacks in his case because the jury commissioner couldn't recall ultilizing it in Petitioner's •ff # 9case and because Petitioner did not prove that any of the 40 jurors actually volunteered. In imposing this quantum of proof on Petitioner for purposes of establishing a prima facie case the Panel's decision is at odds with the entirety of Supreme Court precedent in the area and other circuits as well. See e.g. Duren v s. Missouri/ supra/ Avery vs. Georg ia t 345 U.S. *In fact the jury commissioner would have no way of knowing the name of any case to which he assigned jurors/ because jurors were assigned by judge and courthouse not by case name. In any event the jury commissioner testified that the convenience/volunteer system was employed throughout the entire time relevant to Petitioner's case. (Covelli dep. p.ll) 4 891 (1953) Alexander vs. Louisiana/ 405 U.S. 625 (1971)/ Castaneda vs. Partida, 430 U.S. 482 (1976) Batson vs. Kentucky, 106 S. Ct. 1712 (1986); Turner vs. Fouche, 396 U.S. 3 46 (1969); Whitus v s. Georgia; 385 U.S. 545 (1967) See also Davis vs. Za n t, 721 F. 2d 1478 (11th Cir.) cert, denied 471 U.S. 1143 (1983). These prior Supreme Court decisions, in both the equal protection area and the Sixth Amendment "fair cross section" area make it clear that once a Defendant has demonstrated, as Mr. Davis has here, that a distinctive group in the community is significantly underrepresented on his venire, it is only incumbent upon the Defendant to establish that a racially non neutral selection procedure was in place that could account for the unconstitutional underrepresentation. Not even in equal protection cases, where a Defendant must also establish an intent factor(unnecessary under the Sixth Amendment), has the Supreme Court ever required the Defendant as part of his prima facie case to prove that the racially non-neutral selection mechanism .actually caused the underrepresentation in his specific case. The majority opinion, by nonetheless requiring this additional showing in order to establish a prima facie case deviates dramatically from prior Supreme Court precedent. 5 Ba taon/ Avery/ Duren. In cases involving challenges to the venire the Supreme Court has recognized, most recently in Batson, 106 S. Ct. at 1722, that it ha3: ...found a prima facie case on proof that members of the Defendant's race were substantially underrepre sented on the venire from which his jury was drawn, and that the venire was selected under a practice providing the oppor tun i ty _to discriminate, citing W h i tus vs. Georgia, 385 U.S. at 552, Ca s ta ne da v s. Pa r t i da 4430 U.S. at 494; Washington vs. Davis 426 US., at 241; Alexander vs. Louisiana, 405 U.S. at 629-631. (emphasis addedl And, as early as 1953, in Avery vs. Georgia, 345 U.S. 891 (1953) the Supreme Court found that where Blacks comprised 5% of the eligible jury li3t the fact that there were no Blacks on a venire of 60 was not acceptable and established a prima facie case, where the procedure employed to select the venire pro vided an opportunity to discriminate. In Ave ry the Court specifically rejected the argument, essentially adopted by the Panel in Davis, that the Defendant failed to establish a prima facie case because he had: ...failed to prove some particular act of discrimina tion by some particular officer responsible for the selection of the jury. Avery, 345 U.S. at 562. ★ *It should be noted initially that the burden of esta blishing a prima facie case is not and should not be an onerous one. See cf. Texas Department of Community Affairs vs Burdine, 450 U.S. 248 (1981) Batson supra. The analytic purpose of the prima facie case is not to require a party to conclusively prove the proposition at issue but rather to merely raise on inference of discriminatory impact or purposes that shifts the burden to the state to produce a constitutional explanation. It's not the same burden a party has in ultimately proving discrimination once an explanation has been supplied that suf ficiently rebuts the discriminatory inference. Texas etc. vs. Burdine. 6 Once the underrepresentation had been shown, for the pur poses of establishing a prima facie case, all that was neces sary was the opportunity to discriminate. Significantly, the Panel's decision in the instant case accepts Petitioner's argument that the "convenience" system provided such an opportunity, but instead of shifting the obligation to the state to explain how the underrepresentation may have occurred constitutionally the Panel's decision places an additional burden on the Petitioner of proving the flawed mechanism (the "convenience" system) actually caused the demon- strated underrepresentation. (Slip opinion p.22) This addi tional burden is wholly inconsistent with prior Supreme Court precedent. In reaching this conclusion the Panel ignores the fact that in Ba tson the Supreme Court has already held that a suffi- * Under t"he ra’tXo n aTe of the iljo r i ty' s ife’cTsion Tn tTHe instant case the Defendant in the leading Sixth Amendment Supreme Court case, Duren vs. Missouri would have lost. In Duren the Petitioner attacked the exclusion of women from his venire. He demonstrated that while women comprised 54% of the community there were only 5 women on his 53 person venire. Defendant further established that Missouri had in place an eligibility exemption that allowed women to exempt themselves from jury duty and that this procedure was utilized in previous cases. The Supreme Court found this evidence to be a suffi cient prima facie violation of the Sixth Amendment's fair cross section requirement. The Petitioner was not required to show that any particular women utilized the exemption or if they had not exempted themselves, they would have been on his venire. The majority's decision in Mr. Davis' case unlike the Court in Duren requires the Petitioner to point to a particular juror who actually volunteered. Moreover, the majority panel's deci sion is particulary unfair, given the fact, as noted in Judge Flaum's dissent, slip opinion p.29, that Davis' counsel re quested the state court judge ask the members of the venire if they volunteered to serve in the Des Plaines courthouse and the judge refused to do so. 7 cient prima facie showing was established by producing evidence in the defendant's own case that Blacks were underrepresented and the venire was selected under a practice "providing an opportunity for discrimination." Ba tson, 106 S. Ct. at 1722. The Court explained further that: This combination of factors raises the necessary inference of purposeful discrimination because the Court has declined to attribute to chance the absence of black citizens on a particular jury array where the selection mechanism is subject to abuse. Ba tson, 106 S. Ct. 1722 The majority in Mr. Davis' case/ unlike the Supreme Court in Batson, willingly attributes "to chance" the wholesale ex clusion of Blacks from the venire because of the mere possibi lity that resort to some other data base would ultimately undercut the Petitioner's statistical showing. In this regard the majority complains that the Peti tioner's statistics (which demonstrated the chance of randomly selecting 40 white jurors from Cook County where 25.6% of the population was Black was seven in one million) were not relia ble because the Petitioner used the whole county population to make his comparison instead of just the adult population, which the majority opinion holds was more appropriate. The majority opinion speculates that perhaps the Petitioner's statistics were "overinclusive" because it may be that non-racial factors such as age would have reduced the percentage of Blacks from 25.6% of the whole population to some lesser proportion of those eligible to vote. (Slip opinion p. 23) However, even assuming that resort to comparing those eligible to vote would B reduce the proportion of Blacks downward from 25.6% to even as low as 5% of the adult population, excluding 80% (4 out of 5) of the Black population (unquestionably not the case) the failure to have any Blacks out of 40 would still not be ex plained in random terms, and would therefore still support the inference that a racially non-neutral device caused the under representation. (See Avery) Certainly, the underrepresentation of Blacks in combina tion with the statistical evidence, the representation of Da vis' trial counsel that he was aware that convenience factors were used in a previous case in the same courthouse, the fact that a substantial number of jurors actually came from the white suburbs surrounding the Des Plaines courthouse, and the testimony of the jury commissioner that his practice was to ask jurors to serve near their homes was a sufficent prima facie showing. See Ba tson. Moreover, even if the dramatic underrepresentation of Blacks on Petitioner's venire would be explained by comparing only the adult population of Cook County then it was incumbent upon the state to provide that possible, though far fetched, explanation. The state had every opportunity before Judge Parsons to rebut Petitioner's evidence by providing the infor mation on the comparative number of Blacks to whites who were eligible to vote. This they did not do, however, and for good reason. The comparative numbers undoubtedly would have been fairly approximate to the county as a whole and at best would 9 have reduced the statistical showing from seven in one million to some other infinitesimal possibility. In 1953, the total absence of Blacks from the Defendant's 60 person venire in Avery, where Blacks comprised a mere 5% of those eligible for jury service, caused Justice Frankfurter in his concurring opinion to comment: The stark resulting phenomenon here was that ... no Negro got onto the panel of 60 jurors from which Avery's jury was selected. The mind of justice as well as its eyes, would have to be blind to attribute such an occurrence to chance. The same holds true some 36 years later. II. Aside from the purported statistical failure in Petitioner's case the majority opinion also blames Petitioner's trial counsel for failing to conclusively establish that the volunteer system was actually employed in Petitioner's case. This holding is particularly unfair given the facts of the case. The trial judge in Petitioner's case was faced with the "stark resulting phenomenon" (See Avery, 345 U.S. at 564) of zero Blacks out of 40. Petititioner's trial counsel, upon seeing the venire not only objected, he moved to dismiss the array or for a hearing to determine how this obvious underre presentation occurred. Moreover, counsel supplied the court with an explanation for the underrepresentation (the "conveni ence" system) and informed the judge he was aware of its use 10 Counsel even wentfrom another case from the same courthouse. further and read into the record the names of the communities in which the members of Mr. Davis' venire resided, demonstrat ing that many came from the predominantly white northwest side of Chicago and 10 northern suburbs.** Counsel then asked the judge to determine if anyone volunteered. The state objected and trial judge refused to inquire. The majority holds it cannot fault a state trial judge with a "full docket" for failing to inquire based on this showing.•k k k However, it would have taken less than a *The majority faults counsel for not instantly providing the name of the other case. Counsel's representation as an officer of the court was entitled to be credited, however. In fact counsel ultimately supplied the name of the other case, and a transcript demonstrating, as he had stated, that convenience factors were used. * *Inexplicably, the majority opinion states the record contains "no information regarding the residen es of the members of the venire" and sugests counsel should hive made an offer of proof. Davis p.26 ftnt 14. But this it; precisely what counsel did! He stated that the jury cards showed the jurors r^si_deci in "Des Plaines, Mt. Prospect, Winnetka, Glenview, Skokie, Palatine, Schiller Park, WilmetteJJ Brookfield and mostly from the northwest side of Chicago " Is the majority stating he should have gone further and ha re read the street addresses into the record? If so what more would this have added? (slip opinion p. 25) Also, it may be more than geography that caused whites to volunteer for jury duty in the overwhelmingly white suburbs. Perhaps white j irors from Chicago were more "comfortable" in going to a white suburb than a racially diverse neighborhood such as 26th Stree ;. Reading the residences of jurors would not explain this pherimenon. The fact remains there was only one way to find out if anyone volunteered and that was to ask. ***There's absolutely no evidence concerning th||s docket of the trial Judge in Davis and the majority's conlfclusion is wholly speculative. However, full or not, Sixth Amendment gaurantees may not be abrogated because it may be time con suming to insure a fair trial. 11 minute to determine if anyone had actually volunteered. A general question to the whole venire (e.g. "Those who volunteered or were asked to volunteer to come here please raise your hands?") would have resolved the issue. The failure of the judge to make this simple inquiry foreclosed forever the ability to demonstrate that anyone volunteered. The jury cards did not reflect this information, and according to the jury commissioner's deposition there was no way to tell who volunteered from any panel of jurors. There was only one way to find out; ask, and to this the state objected and the state judge upheld the objection and refused to inquire. Supreme Court precedent has never required as the majority Panel does here, that for purposes of establishing a prima facie case a Defendant after demonstrating a significant underrepresentation and pointing to a selection procedure that would account for the underrepresentation, to go further and prove a particular juror was actually affected by it. But even assuming that this unprecadent burden was correctly placed on the Petitioner in this case, to hold Mr. Davis responsible for failing to supply the missing link (a juror who actually volunteered) that the majority holds was critical to his case, when his trial counsel attempted to secure this very information and by the actions of the state court judge and state's attorney was prevented from establishing this point, simply is not fair. 12 Conclusion If a venire representing a fair cross section of the community is truly an essential component of a fair trial then it is a requirement that must be vigilently enforced. Unfor tunately the majority's opinion in this case while recognizing the importance of the requirement in principle effectively precludes the provision's enforcement by holding that the state need not bother to explain the absence of Blacks from a jury venire and trial judges are not required to inquire until after the defendant has explained away every conceivable legi timate explanation for the underrepresentation. This burden is in conflict with all prior Supreme Court decisions and therefore Rehearing or Rehearing en banc should be granted and the judgment reversed. Respectfully submitted, Dated: February 15, 1989 PETER J. SCHMIEDEL 343 S. Dearborn #1607 Chicago, IL 60604 (312) 663-5046 Attorney for Petitioner-Appellee 13