Davis v. Warden Petition for Rehearing and Suggestion Rehearing En Banc

    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