Teague v. Lane Brief Amicus Curiae

    No. 8 7 - 5 2 5 9

I n  T h e

Supreme Court ot tfjr lln te b  S ta tes
O c to b er  T e r m , 1987

FRANK DEAN TEAGUE,

V.

Petitioner,

MICHAEL LANE, Director, 
Department of Corrections, et al.,

Respondents.

On Writ Of Certiorari To The United States 
Court Of Appeals For The Seventh Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE

C on r a d  K. H a r p e r  
S t u a r t  J. L a n d  

Co-Chairmen 
N o r m a n  R e d l ic h  

Trustee
W il l ia m  L. R o b in s o n  
J u d it h  A. W in s t o n  
LAWYERS’ COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW  
Suite 400
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

B a r r y  S u l l iv a n  
Counsel of Record 

B a rry  L e v e n s t a m  
J e f f r e y  T .  S h a w  
JENNER & BLOCK 
One IBM Plaza 
Chicago, Illinois 60611 
(312) 222-9350

A tto rn eys for Am ieus Curiae

Midwest Law Printing Co., Chicago 60611, (312) 321-0220



TABLE OF CONTENTS

P age

TABLE OF AUTHORITIES ............................  iii
STATEMENT OF INTEREST OF 

AMICUS CURIAE ...........................................  1
STATEMENT ..............................................................   2
INTRODUCTION AND SUMMARY 

OF ARGUMENT ..................................................... 5
ARGUMENT:

I.
THE STATE’S USE OF ALL ITS PEREM P­
TORY CHALLENGES TO EXCLUDE 10 BLACK
VENIREM EN VIOLATED THE SIXTH AM END­
MENT ................................................................................ 7

A . The Sixth Amendment Fair Cross-Section 
Requirement Guarantees The “Fair Possi­
bility” That The Petit Jury Will Reflect A
Fair Cross-Section Of The Community . . .  7

B . Because The Peremptory Challenge Is A
Non-Constitutional Privilege, Its Exercise 
Is Strictly Subject To Constitutional Limi­
tations ............................   10

C . The Prosecutorial Use Of Peremptory Chal­
lenges In A Manner That Undermines The 
Fair Cross-Section Requirement Violates 
The Sixth Amendment, And Must There­
fore Be Subject To Limitation ............ 12



11

II.
RELIEF SHOULD BE GRANTED IN THIS 
CASE UNDER BATSON BECAUSE PETI­
TIONER HAS ESTABLISHED A PRIMA FACIE 
FOURTEENTH AMENDMENT VIOLATION .. 15
A. Given The Fundamental Nature Of The

Right To The Equal Protection Of The 
Laws, This Court Should Give Full Retroac­
tive Effect To Batson ............... ............ 15

B . Because The Principles Established In Bat­
son Protect And Enhance The Reliability 
Of Criminal Trials, They Should Be Applied 
Retroactively . . ........................................ 19

C . Reliance On Swain v. Alabama After This 
Court’s Denial Of Certiorari In McCray v.
New York Was Erroneous . . . . . . . . ------  21

III.
WHEN THE PROSECUTOR OFFERED JUSTI­
FICATIONS FOR HIS USE OF PEREMPTORY 
CHALLENGES, THE TRIAL COURT SHOULD 
HAVE CONSIDERED WHETHER THE JUSTI­
FICATIONS WERE PRETEXTUAL .............  24

CONCLUSION .......................................................  28



Ill

TABLE OF AUTHORITIES

Cases P age

Alexander v. Louisiana, 405 U.S. 625 (1972) . . .  21
Allen v. Hardy, 106 S. Ct. 2878 (1986) (per curiam) ..

................................................................... 16, 19, 24
Ballew v. Georgia, 435 U.S. 223 (1978) ...............  8, 9
Barnette v. West Virginia St. Bd. o f Educ., 47 F.

Supp. 251 (S.D. W. Va. 1942) (3-judge court), affd,
319 U.S. 624 (1943) ...........................................  23

Basic Inc. v. Levinson, 108 S. Ct. 978 (1988)........ 25
Batson v. Kentucky, 476 U.S. 79 (1986) . . . ........passim
Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985), vacated,

106 S. Ct. 3289, opinion reinstated, 801 F.2d 871 
(6th Cir. 1986), cert, denied, 107 S. Ct. 910 
(1987) ..................................................................  13,23

Bowden v. Kemp, 793 F.2d 273 (11th Cir.), cert.
denied, 106 S. Ct. 3289 (1986) ......................... 22

Browder v. Gayle, 142 F. Supp. 707 (M.D. Ala.) 
(3-judge court), affd, 352 U.S. 903 (1956) (per 
curiam) .............................................................  23, 24

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393
(1932) .................................................................   23

California v. Ramos, 463 U.S. 992 (1983) ...........  18
Carter v. Jury Comm’n, 396 U.S. 320 (1970) ........ 13
Castaneda v. Partida, 430 U.S. 482 (1977) .........  21
Commonwealth v. Martin, 461 Pa. 289,336 A.2d 290

(1975) ..................................................................  11
Commonwealth v. Soares, 377 Mass. 461,387 N.E.2d

499, cert, denied, 444 U.S. 881 (1979) .............  13



IV

Desist v. United States, 394 U.S. 244 (1969) ...........  15,16
Duncan v. Louisiana, 391 U.S. 145 (1968) .......... 7, 8
Duren v. Missouri, 439 U.S. 357 (1979)........ 5, 9, 14, 15
Edelman v. Jordan, 415 U.S. 651 (1974) .............  23
Elkins v. United States, 364 U.S. 206 (1960) . . . .  27
Ex parte Virginia, 100 U.S. 339 (1880) ................ 5
Fields v. People, 732 P.2d 1145 (Colo. 1987) ........ 13
Garrett v. Morris, 815 F.2d 509 (8th Cir.), cert, denied,

108 S. Ct. 233 (1987) ........................................ 27
Griffith v. Kentucky, 107 S. Ct. 708 (1987) .......... 2, 16
Ivan V. v. City of New York, 407 U.S. 203 (1972)

(per curiam) .......................................................  19
Jordan v. Lippman, 763 F.2d 1265 (11th Cir.

1985) ...........      22,23
Lane v. Wilson, 307 U.S. 268 (1939) ................... . 12
Lockhart v. McCree, 476 U.S. 162 (1986).............  8
Lowenfield v. Phelps, 108 S. Ct. 546 (1988) . . . . .  18
Mackey v. United States, 401 U.S. 667 (1971) . . .  15, 16
Marhury v. Madison, 1 U.S. (1 Cranch) 267 (1803) .. 12
Martin v. Texas, 200 U.S. 316 (1906)..................  5
McCray v. Abrams, 576 F. Supp. 1244 (E.D.N.Y.

1983), a ffd  in part and vacated in part, 750 F.2d 
1113 (2d Cir. 1984) ............................................ 22

McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984),
vacated, 106 S. Ct. 3289 (1986) .................  13, 15, 23

McCray v. New York, 461 U.S. 961 (1983) .. 7, 21, 22,23, 24
Norris v. United States, 687 F.2d 899 (7th Cir.

1982) ................................................................... 23
Palko v. Connecticut, 302 U.S. 319 (1937).......... 16, 17



V

Panduit Carp. v. All States Plastic Mfg. Co., 744 F.2d
1564 (Fed. Cir. 1984) (per curiam) ...................  25

People v. Frazier, 127 111. App. 3d 151, 469 N.E.2d
594 (1st Dist. 1984) ..........................................  11

People v. Johnson, 148 111. App. 3d 163, 498 N,E.2d
816 (1st Dist. 1986) ........................................... 11

People v. Teague, 108 111. App. 3d 891, 439 N.E.2d 
1066 (1st Dist. 1982), cert, denied, 464 U.S. 867 
(1983) ........... .....................................................  2, 26

People v. Wheeler, 22 Cal. 3d 258,148 Cal. Rptr. 890,
583 P.2d 748 (1978) .................................... . 13

Peters v. Kiff, 407 U.S. 493 (1972) ....................... 8
Prejean v. Blackburn, 743 F.2d 1091 (5th Cir.

1984)   23
Procter v. Butler, 831 F.2d 1251 (5th Cir. 1987) . 16
Riley v. State, 496 A.2d 997 (Del. 1985), cert, denied,

106 S. Ct. 3339 (1986) ...................................... 13
Roberts v. Russell, 392 U.S. 293 (1968) (per curiam) . 19
Roman v. Abrams, 822 F.2d 214 (2d Cir. 1987) .. 13
Rose v. Mitchell, 443 U.S. 545 (1979) ...................  17
Simpson v. Commonwealth, 622 F. Supp. 304 (D.

Mass. 1984), rev’d, 795 F.2d 216 (1st Cir.), cert, 
denied, 107 S. Ct. 676 (1986)............... ..........  22

Smith v. Texas, 311 U.S. 128 (1940) ................. .. 17
Snyder v. Massachusetts, 291 U.S. 97 (1934)___ 17
Solem v. Stumes, 465 U.S. 638 (1984) .................  21
State v. Gilmore, 103 N.J. 508, 511 A.2d 1150

(1986) ........................................... .....................  13,23
State v. Neil, 457 So. 2d 481 (Fla. 1984).............  13, 23
Stilson v. United States, 250 U.S. 583 (1919) . . . .  10
Strauder v. West Virginia, 100 U.S. 303 (1880) .. 5, 17



VI

Swain v. Alabama, 380 U.S. 202 (1965) ...........  passim
Taylor v. Louisiana, 419 U.S. 522 (1975)___5, 6, 8, 9,17
Tenneco Chemicals v. William T. Burnett & Co., 691

F.2d 658 (4th Cir. 1983) ....................................  26
Turner v. Murray, 476 U.S. 28 (1986) .................  18
Ulster County Court v. Allen, 442 U.S. 140 (1979) .. 25
United States v. Clark, 737 F.2d 679 (7th Cir.

1984) .............................. ....................... ............  23
United States ex rel. Palmer v. DeRobertis, 738 F.2d

168 (7th Cir.), cert, denied, 469 U.S. 924 (1984) .. 23
United States ex rel. Ross v. Franzen, 688 F.2d 1181

(7th Cir. 1982) (en banc) .................................... 25
United States v. Green, 742 F.2d 609 (11th Cir.

1984) ....................................................................  12
United States v. Hawkins, 781 F.2d 1483 (11th Cir.

1986) ....................................................................  22
United States v. Johnson, 457 U.S. 537 (1982) . . .  16
Vasquez v. Hillery, 474 U.S. 254 (1986) ...............  17
Village of Arlington Heights v. Metropolitan Hous­

ing Dev. Corp., 429 U.S. 252 (1977) ...............  21
Vukasovich, Inc. v. Commissioner, 790 F.2d 1409

(9th Cir. 1986) ................................   22
Washington v. Davis, 426 U.S. 229 (1976) ...........  21
Weathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983),

cert, denied, 464 U.S. 1046 (1984) ...................... 26
Williams v. Florida, 399 U.S. 78 (1970) .............  8
Witherspoon v. Illinois, 391 U.S. 510 (1968)........ 19, 20
Woodson v. North Carolina, 428 U.S. 280 (1976) .. 18
Yates v. Aiken, 108 S. Ct. 534 (1988) ...................  15,16



Vll

Constitutional Provisions, Rule, and Statute
U.S. Const, art. VI, cl. 2 ................................... 12
U.S. Const, amend. VI ........... .........................  passim
U.S. Const, amend. XIV ............. .....................  passim
Supreme Court Rule 36.2 ...................................... 2
111. Rev. Stat. ch. 38, f  115-4(e) (1985) .................  3

Books and Articles
Adler, Socioeconomic Factors Influencing Jury Ver­

dicts, 3 N.Y.U. Rev. L. & Soc. Change 1 (1973) ..
Bell, Racism in American Courts: Cause for Black 

Disruption or Despair?, 61 Calif. L. Rev. 165 
(1973) ......... ................... ............................

Bernard, Interaction Between the Race of the De­
fendant and That o f Jurors in Determining Ver­
dicts, 5 L. & Psych. Rev. 103 (1979) .............  20

Broeder, The Negro in Court, 1965 Duke L.J. 19 .. 20
Comment, A Case Study of the Peremptory Chal­

lenge: A  Subtle Strike at Equal Protection and 
Due Process, 18 St. Louis U.L.J. 662 (1974) . 20

Davis & Lyles, Black Jurors, 30 Guild Prac. I l l
(1973) ..................................................................  20

Gerard & Terry, Discrimination Against Negroes in 
the Administration of Criminal Law in Missouri,
1970 Wash. U.L.Q. 415 .................................... 20

Ginger, What Can Be Done to Minimize Racism in
Jury Trials?, 20 J. Pub. L. 427 (1971) ............ 20

Gleason & Harris, Race, Socio-Economic Status, and 
Perceived Similarity as Determinants of Judg­
ments by Simulated Jurors, 3 Soc. Behav. & Per­
sonality 175 (1975) ............................................ 20

20

20



V lll

H. Kalven & H. Zeisel, The American Jury (1966) .. 20
McGlynn, Megas & Benson, Sex and Race as Fac­

tors Affecting the Arbitration of Insanity in a 
Murder Trial, 93 J, Psych. 93 (1976) .............  20

J. Rhine, The Jury: A  Reflection of the Prejudices 
of the Community, in Justice on Trial 40 (D. 
Douglas & P. Noble, eds. 1971) .. ......................  20

Schaefer, Reducing Circuit Conflicts, 69 A.B.A. J.
452 (1983) .........    18

R. Simon, The Jury and the Defense of Insanity
(1967) ................................   20

Tussman & tenBroek, The Equal Protection o f the
Laws, 37 Calif. L. Rev. 341 (1949) .................  17, 18

Ugwuegbu, Racial and Evidential Factors in Juror 
Attribution of Legal Responsibility, 15 J. Experi­
mental Soc. Psych. 133 (1979) .............................  20

J. Van Dyke, Jury Selection Procedures: Our Un­
certain Commitment to Representative Panels 
(1977) ..................................................................  20



No. 8 7 - 5  2 5 9

In  T he

Supreme (to rt af ttyz lEnftcb States
October T er m , 1987

FRANK DEAN TEAGUE,
Petitioner,

v.

MICHAEL LANE, Director,
Department of Corrections, et al.,

Respondents.

On Writ Of Certiorari To The United States 
Court Of Appeals For The Seventh Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE

STATEMENT OF INTEREST OF 
AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963, at the request of the President 
of the United States, to involve private attorneys in the 
national effort to assure the civil rights of all Americans.



- 2-

During the past 25 years, the Lawyers’ Committee and 
its local affiliates have enlisted the services of thousands 
of members of the private bar to address the legal prob­
lems of minorities and the poor. The Committee’s mem­
bership includes former presidents of the American Bar 
Association, a number of law school deans, and many of 
the nation’s leading lawyers. The importance to our crim­
inal justice system of having criminal verdicts rendered 
by juries untainted by discrimination, and the widespread 
perception that prosecutors have practiced discrimination 
in the exercise of peremptory challenges, prompted the 
Lawyers’ Committee to file briefs amicus curiae in Bat­
son v. Kentucky, 476 U.S. 79 (1986), and Griffith v. Ken­
tucky, 107 S. Ct. 708 (1987). Similar concerns for the integ­
rity of our criminal justice system have prompted the 
Lawyers’ Committee to file a brief amicus curiae in this 
case. The parties have consented to the filing of this brief, 
which is therefore submitted pursuant to Supreme Court 
Rule 36.2.

STATEMENT

Petitioner Frank Dean Teague, a black man, was con­
victed of armed robbery and attempted murder by an all- 
white Illinois state jury (J.A. 15). He was sentenced to 
two concurrent terms of 30 years’ imprisonment. People 
v. Teague, 108 111. App. 3d 891, 893, 439 N.E.2d 1066, 1068 
(1st Dist. 1982), cert, denied, 464 U.S. 867 (1983).

Although the venire in petitioner’s case included 11 
black veniremen, the State peremptorily struck 10 of 
them, using each and every one of the 10 peremptory



- 3-

challenges then allowed by Illinois law. See 111. Rev. Stat. 
ch. 38, 5 115-4(e) (1985).1 When petitioner objected to this 
discrimination, the prosecutor volunteered a series of pur­
portedly neutral explanations for excusing the 10 black 
veniremen (J.A. 3-4). The trial court overruled petition­
er’s objections, but made no finding as to the validity of 
the prosecutor’s “explanations” (J.A. 4).

On appeal, the Illinois Appellate Court indicated that 
the prosecutor’s “explanations” were dubious, but affirm­
ed the conviction on the ground (Pet. App. A, at 2) that 
petitioner had not shown the systematic exclusion in case 
after case required by Swain v. Alabama, 380 U.S. 202 
(1965). Following the denial of a petition for rehearing, 
the Illinois Supreme Court denied leave to appeal (J.A. 
15), and, in October 1983, this Court denied certiorari (J.A. 
15).

In March 1984, petitioner filed a habeas corpus petition 
in the United States District Court for the Northern Dis­
trict of Illinois. Petitioner claimed that the State had 
violated his Sixth Amendment right to be tried by a jury 
chosen from a fair cross-section of the community, and 
his Fourteenth Amendment right to the equal protection 
of the laws. The district court granted summary judgment 
in favor of the State, holding that petitioner’s claims were 
foreclosed by Swain and Seventh Circuit case law (J.A. 
5-6).

On appeal, a divided panel of the Seventh Circuit held 
that petitioner had established a prima facie violation of 
the Sixth Amendment fair cross-section requirement and

1 The eleventh black venireman, the wife of a police officer, was 
struck by petitioner, who was accused of the attempted murder 
of police officers (Pet. 2-3).



—4

remanded the case for a hearing (Pet. App. A, at 24-30).2 
The State filed a petition for rehearing en banc, which 
was granted in December 1985 (J.A. 7-8). Subsequently, 
while petitioner’s case was pending before the en banc 
court, this Court announced its decision in Batson v. Ken­
tucky, 476 U.S. 79 (1986). By divided vote, however, the 
en banc court reversed the panel decision and affirmed 
the decision of the district court (J.A. 36). First, the en 
banc court held, as a matter of law, that the State’s dis­
criminatory exercise of its peremptory challenges did not 
violate the Sixth Amendment fair cross-section require­
ment (J.A. 34-36). Second, the court held that this Court’s 
decision in Batson did not apply to petitioner’s Fourteenth 
Amendment claim, which was therefore controlled by 
Swain (J.A. 16 & n.4). Finally, the court held that peti­
tioner was not entitled to relief on his equal protection 
claim because, even assuming that the claim was not 
proceduraliy barred, petitioner had not established sys­
tematic exclusion in case after case, as required by Swain 
(J.A. 17 n.6).

On March 7, 1988, this Court granted certiorari (J.A. 
54).

2 The Seventh Circuit panel ordered a remand because of the 
“relative novelty” of its holding, but noted that, “on the present 
facts, a remand would be unnecessary and perhaps undesirable in 
allowing the state to conjure up a rationale having little to do with 
the reality at trial if all parties at trial had prior notice of [the] 
holding” (Pet. App. A, at 27-28).



- 5-

INTRODUCTION AND SUMMARY 
OF ARGUMENT

For more than a century, beginning with its decision 
in Strauder v. West Virginia, 100 U.S. 303 (1880), this 
Court has consistently condemned discrimination in jury 
selection procedures because a criminal defendant has a 
constitutional “right to be tried by a jury whose members 
are selected pursuant to non-discriminatory criteria.” Bat­
son, 476 U.S. at 85-86. See also Martin v. Texas, 200 U.S. 
316, 321 (1906) (Fourteenth Amendment); Ex parte 
Virginia, 100 U.S. 339, 345 (1880) (same); Duren v. 
Missouri, 439 U.S. 357, 363-64 (1979) (Sixth Amendment); 
Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (same).

In Swain v. Alabama, the Court reaffirmed this 
longstanding principle, but sought at the same time to 
afford special protection to the S tate’s peremptory 
challenge privilege by creating a presumption that the 
State’s use of peremptory challenges be deemed proper 
in any individual case. Swain, 380 U.S. at 221-22. Lower 
courts subsequently interpreted Sivain as holding that 
discrimination could be established in this context only 
by proving its existence in case after case, and thus 
precluded the granting of relief in any particular case (ab­
sent such statistical evidence), even if the State’s 
challenges in the particular case could not be explained 
except as invidious discrimination. See Batson, 476 U.S. 
at 92.

In Batson, this Court acknowledged the “crippling bur­
den of proof” which Swain and its progeny had imposed 
on defendants, and concluded that each defendant must 
be allowed to prove discrimination on the facts of his own 
case. Id. at 92-98. The Court therefore fundamentally 
altered the balance which Swain had struck between the



■6-

peremptory challenge privilege and the constitutional right 
to be free from invidious discrimination, and confirmed 
the primacy of the latter.

In the case at bar, the Seventh Circuit improperly de­
clined to give effect to Batson and the long line of cases 
upon which its rationale is based. Indeed, the Seventh Cir­
cuit expressly based its decision (J.A. 31-34) upon its view 
of the peremptory challenge as a sacrosanct privilege 
which need not give way to constitutional requirements. 
Reversal is required for three separate reasons.

First, the State’s deployment of its peremptory chal­
lenges violated the Sixth Amendment. Under the Sixth 
Amendment, as this Court held in Taylor, 419 U.S. at 
527, a criminal defendant is entitled to be tried by a jury 
drawn from a fair cross-section of the community. While 
the fair cross-section principle does not require that any 
particular petit jury actually include members of any par­
ticular group, it does ensure the “fair possibility” that 
the jury will be comprised of various distinct community 
groups, and thus prohibits the State from affirmatively 
acting to subvert that possibility. Because the prosecutor’s 
use of peremptory challenges effectively eliminated any 
possibility that blacks could sit on the petit jury in this 
case, petitioner established a prima facie violation of the 
Sixth Amendment.

Second, the facts of this case established a prima facie 
equal protection violation. Contrary to the Seventh Cir­
cuit’s decision, petitioner was not required by Swain v. 
Alabama to prove discrimination by showing exclusion in 
case after case: (1) The Court’s decision in Batson is con­
trolling here, rather than Swain, because a central pur­
pose of Batson was to eliminate racial discrimination from 
the criminal justice system, a goal which is central to our 
“concept of ordered liberty” and thus requires retroac­
tive treatment; (2) Batson, rather than Swain, must be



- 7-

applied to this case for the additional reason that Bat­
son protects and enhances the truth-seeking goal of the 
criminal justice system; and (3) Regardless of whether 
retroactive application of Batson would otherwise be re­
quired, such application is required in the extraordinary 
circumstances of this case because the courts below per­
functorily applied the Swain presumption after a majority 
of this Court had indicated in McCray v. New York, 461 
U.S. 961 (1983), that Swain should not be blindly followed.

Third, even if the Swain decision controls petitioner’s 
equal protection claim, it was error for the trial court to 
rely on the Swain presumption when the prosecutor ex­
pressly invited the court to adjudge the validity of his 
volunteered “explanations.”

ARGUMENT

I.
THE STATE’S USE OF ALL ITS PEREMPTORY CHAL­
LENGES TO EXCLUDE 10 BLACK VENIREMEN VIO­
LATED THE SIXTH AMENDMENT.
A. The Sixth Amendment Fair Cross-Section Requirement 

Guarantees The “Fair Possibility” That The Petit Jury 
Will Reflect A Fair Cross-Section Of The Community.

The Sixth Amendment guarantees to each criminal de-. 
fendant the right to trial by an impartial jury of his peers. 
U.S. Const, amend. VI.3 That right necessarily “con­

3 It is indeed significant that Swain, a Fourteenth Amendment 
equal protection case, was decided in 1965, three years before this 
Court held that the Sixth Amendment was applicable to the states. 
See Duncan v. Louisiana, 391 U.S. 145, 149 (1968). Thus, there 
was no reason in Swain for this Court to test its holding in that 
case against the requirements of the Sixth Amendment.



— 8—

templates a jury drawn from a fair cross section of the 
community.” Taylor, 419 U.S. at 527. See also Williams 
v. Florida, 399 U.S. 78, 100 (1970). In Taylor v. Loui­
siana, this Court recognized that the “fair-cross-section 
requirement [not only is] fundamental to the jury trial 
guaranteed by the Sixth Amendment,” but is mandated 
by the central purpose of the jury system, which is “to 
guard against the exercise of arbitrary power—to make 
available the commonsense judgment of the community 
as a hedge against the overzealous or mistaken prosecutor 
and in preference to the professional or perhaps over con­
ditioned or biased response of a judge.” Taylor, 419 U.S. 
at 530. See also Duncan v. Louisiana, 391 U.S. 145, 
155-56 (1968).

This Court, of course, has never construed the fair cross- 
section principle to require that any particular petit jury 
include members of any particular group. Nonetheless, the 
Court repeatedly has emphasized that the Sixth Amend­
ment prohibits the State from acting affirmatively to 
defeat the “fair possibility” that the petit jury will reflect 
a fair cross-section of the community. Ballew v. Georgia, 
435 U.S. 223, 239 (1978); Taylor, 419 U.S. at 528. See also 
Peters v. Kiff, 407 U.S. 493, 500 (1972); Williams, 399 U.S. 
at 100. Indeed, the preservation of that “fair possibility” 
is central to the integrity of the jury system because ex­
clusion of groups “for reasons completely unrelated to the 
ability of members of the group to serve as jurors in a 
particular case . . . raise[s] at least the possibility that 
the composition of juries would be arbitrarily skewed in 
such a way as to deny criminal defendants the benefit 
of the common-sense judgment of the community.” Lock­
hart v. McCree, 476 U.S. 162, 175 (1986).

In giving effect to the Sixth Amendment, and, more spe­
cifically, to guard against this kind of imbalance, this 
Court has carefully restricted those State practices—



- 9-

whether intentional or not—which tend to exclude or 
dilute representation of diverse community groups. In 
Taylor v. Louisiana, for example, the Court invalidated 
the conviction of a male defendant who had been tried 
by a jury selected from a venire from which most women 
had been excluded by statute. 419 U.S. at 538. See also 
Duren, 439 U.S. at 370 (underrepresentation of women 
on the venire violates the Sixth Amendment fair cross- 
section requirement). Further, in Ballew v. Georgia, the 
Court held that the Sixth Amendment prohibits the use 
of a five-person petit jury in a criminal misdemeanor trial. 
Although there was no suggestion in Ballew that the 
venire did not represent a fair cross-section, the Court 
nonetheless concluded that the size of the petit jury raised 
an unconstitutional possibility that the jury might reach 
an inaccurate or biased decision, or might not truly repre­
sent the community. Ballew, 435 U.S. at 239.4

By restricting State action which eliminates or dilutes 
the fair possibility that the jury will truly reflect the com­
position of the community, the Sixth Amendment fair 
cross-section requirement promotes the interests of plural­
ism which are essential both to the integrity of our jury 
system and to public confidence in it. See Taylor, 419 U.S. 
at 530-31.

4 Although there was no majority opinion in Ballew, six members 
of the Court believed that Georgia’s five-person jury violated the 
Sixth Amendment. See 435 U.S. at 239 (Blackmun, J., joined by 
Stevens, J.); id. at 245 (White, J.); id. at 246 (Brennan, J., joined 
by Stewart and Marshall, JJ.). Moreover, the three remaining 
members of the Court, Chief Justice Burger and Justices Powell 
and Rehnquist, noted that the reduced size of the jury raised 
“grave questions of fairness.” Id. at 245.



- 10-

B. Because The Peremptory Challenge Is A Non-Constitu­
tional Privilege, Its Exercise Is Strictly Subject To Con­
stitutional Limitations.

When used properly, the peremptory challenge, like the 
fair cross-section requirement, promotes the integrity and 
reliability of the jury system. It is well-established, how­
ever, that there is no constitutional right to the exercise 
of peremptory challenges. Batson, 476 U.S. at 91; Swain, 
380 U.S. at 219; Stilson v. United States, 250 U.S. 583, 
586 (1919). The peremptory challenge is solely a creature 
of legislative grace, which must be schooled in constitu­
tional ways.

In Swain, the Court sought to accommodate the diver­
gent interests embodied in the constitutional right to be 
free from invidious discrimination, on the one hand, and 
in the State’s privilege of exercising peremptory chal­
lenges, on the other hand. The Court reaffirmed that the 
Constitution prohibits racial discrimination in jury selec­
tion, but also emphasized the wide discretion which the 
peremptory challenge historically has entailed. The Court 
therefore held that the use of peremptory challenges in 
any given case should be presumed proper, and not sub­
ject to judicial scrutiny. 380 U.S. at 221-22. The Court 
indicated, however, that discrimination in case after case 
would require judicial scrutiny. Id. at 223-24.

Experience with the Swain presumption showed that 
the balance struck in Swain was too one-sided, and effec­
tively eviscerated constitutional protections. Contrary to 
constitutional principles, prosecutors frequently exercised 
their peremptory challenges to practice racial discrim­
ination.5 At the same time, the “crippling” burden im­

5 As this Court observed in Batson, “[t]he reality of practice, 
amply reflected in many state and federal court opinions, shows 
that the [peremptory] challenge . . .  at times has been . . . used 

(Footnote continued on following page)



- 11-

posed by Swain made it virtually impossible for criminal 
defendants to enforce their constitutional rights. Batson, 
476 U.S. at 92-93.

In Batson, the Court therefore reassessed the balance 
struck in Swain. In doing so, the Court stated unequivo­
cally that the peremptory challenge may be exercised only 
within constitutional bounds, 476 U.S. at 89, and empha­
sized anew that exclusion of jurors solely because of their 
race is never constitutionally permissible, even in a single, 
isolated case. Id. at 95. The practically insurmountable 
presumption and burden of proof imposed by Swain had 
effectively condoned discrimination in individual cases by 
“largely immun[izing] [peremptory challenges] from consti­
tutional scrutiny,” id. at 92-93, and thus tempted prose­
cutors to locate an optimal level of discrimination (one 
which would achieve their invidious purposes without trig­
gering judicial scrutiny).6 Thus, the Batson Court adopted

5 continued
to discriminate against black jurors.” 476 U.S. at 99. Experience 
in the State of Illinois shows that the Court’s observation in 
Batson may well have understated the magnitude of the problem. 
See People v. Frazier, 127 111. App. 3d 151, 156-57, 469 N.E.2d 
594, 598-99 (1st Dist. 1984) (cataloguing 36 Illinois cases between 
1980 and 1984, in which discriminatory use of peremptory chal­
lenges by prosecutor was in issue); People v. Johnson, 148 111. App. 
3d 163, 179 n.2, 498 N.E.2d 816, 826-27 n.2 (1st Dist. 1986) (cata­
loguing 22 additional Illinois cases).
6 In other words, the practical effect of Swain was not to dis­
courage prosecutors from practicing discrimination, but to en­
courage them to practice discrimination with circumspection. Thus, 
prosecutors refrained from discriminating in “case after case,” and 
limited their discrimination to cases where it would matter most, 
that is, where the prosecution’s evidence was weak and the facts 
most susceptible to manipulations of racial prejudice. See Common­
wealth v. Martin, 461 Pa. 289, 299, 336 A.2d 290, 295 (1975) (Nix, 
J., dissenting) (“[t]he glaring weakness in the Swain rationale is 
that it fails to offer any solution where the discriminatory use of 
peremptory challenges is made on a selected basis”).



12-

a more effective means of ensuring constitutional compli­
ance. Id. at 95. In doing so, the Court firmly rejected any 
notion that the peremptory challenge is to be held in­
violate, and confirmed that constitutional commands must 
take precedence over non-constitutional privileges. See 
U.S. Const, art. VI, cl. 2; Marbury v. Madison, 1 U.S. 
(1 Cranch) 267, 285-86 (1803).

C. The Prosecutorial Use Of Peremptory Challenges In A 
Manner That Undermines The Fair Cross-Section Re­
quirement Violates The Sixth Amendment, And Must 
Therefore Be Subject To Limitation.

Unless the State may accomplish through the indirec­
tion of peremptory challenges what it cannot do directly 
in empaneling a venire or legislating the size of the petit 
jury—eliminate the fair possibility that the petit jury will 
reflect a fair cross-section of the community—the Sixth 
Amendment must be construed to impose limitations on 
the use of peremptory challenges. Cf Lane v. Wilson, 307 
U.S. 268, 275 (1939) (Frankfurter, J.) (the Constitution pro­
hibits “sophisticated as well as simple-minded modes of 
discrimination”)- Otherwise, the fair cross-section require­
ment would be a dead letter because the deployment of 
peremptory challenges against a particular racial group 
can undercut that requirement “to the same extent . . . 
[as if the group] had not been included on the jury list 
at all.” United States v. Green, 742 F.2d 609, 611 n.* (11th 
Cir. 1984) (citations omitted).7 Two courts of appeals have

7 Indeed, this Court noted in Swain that peremptory challenges 
have been used in this country with a greater vengeance than in 
the United Kingdom because American jury pools are drawn from 
“a greater cross-section of a heterogeneous society.” Swain, 380 
U.S. at 218 (footnote omitted). In the case at bar, the Seventh 
Circuit went so far as to assert that the fair cross-section require­
ment “increases the necessity of employing peremptories” (J.A.

(Footnote continued on following page)



- 13-

recognized this fact and have imposed limitations, under 
the Sixth Amendment, to prevent peremptory challenges 
from being deployed as a means of abridging the fair 
cross-section requirement. McCray v. Abrams, 750 F.2d 
1113, 1130-31 (2d Cir. 1984), vacated, 106 S. Ct. 3289
(1986) ;8 Booker v. Jabe, 775 F.2d 762, 767-71 (6th Cir.
1985), vacated, 106 S. Ct. 3289, opinion reinstated, 801 
F.2d 871 (6th Cir. 1986), cert, denied, 107 S. Ct. 910
(1987) .9

If the fair cross-section requirement is to achieve its 
constitutional purpose, each defendant must be allowed 
to challenge the discriminatory use of peremptory chal­
lenges in his own case, whenever their use eliminates or 
substantially dilutes the participation of any particular 
racial group on the petit jury.10 Consistent with this

1 continued
33; emphasis added). However, any suggestion that the peremp­
tory challenge may properly be used to subvert the fair cross- 
section requirement cannot stand. That requirement is both consti­
tutionally mandated and grounded in “the very idea of a jury.” 
Carter v. Jury Comm’n, 396 U.S. 320, 330 (1970).
8 In Raman v. Abrams, 822 F.2d 214, 225 (2d Cir. 1987), the Sec­
ond Circuit reaffirmed the continued validity of McCray.
9 A number of state appellate courts have reached the same con­
clusion. See People v. Wheeler, 22 Cal. 3d 258, 276-77, 148 Cal. 
Rptr. 890, 903, 583 P.2d 748, 761-62 (1978); Fields v. People, 732 
P.2d 1145, 1153-55 (Colo. 1987); Riley v. State, 496 A,2d 997, 1012 
(Del. 1985), cert, denied, 106 S. Ct. 3339 (1986); State v. Neil, 457 
So. 2d 481, 486-87 (Fla. 1984); Commonwealth v. Soares, 377 Mass. 
461, 488, 387 N.E.2d 499, 516, cert, denied, 444 U.S. 881 (1979); 
State v. Gilmore, 103 N.J. 508, 526-29, 511 A.2d 1150, 1159-60 
(1986) (all recognizing defendant’s right, under the Sixth Amend­
ment or equivalent state constitutional provisions, to be tried by 
a petit jury from which members of his race have not been 
excluded).
10 It is well to remember that the Sixth and Fourteenth Amend­
ments serve different constitutional purposes by different means. 
The Sixth Amendment focuses upon the composition of the venire

(Footnote continued on following page)



14-

Court’s holding in Duren v. Missouri, 439 U.S. at 364, 
a prima facie violation of the fair cross-section require­
ment should be found when:

(1) the prosecutor, through his use of peremptory 
challenges, has excluded members of a distinct 
racial group;

(2) the representation of the group in the remain­
ing portion of the venire from which the jury 
is selected is not reasonable in relation to the 
number of group members in the community at 
large; and

(3) the underrepresentation is due primarily to the 
prosecutor’s use of peremptory challenges.!11]

10 continued
and its relationship to the petit jury. Thus, under the Sixth 
Amendment, any defendant may challenge the underrepresenta­
tion or exclusion (whether intentional or not) of any racial group. 
Duren, 439 U.S. at 359 n.l, 368 n.26. On the other hand, the Four­
teenth Amendment protects against discrimination and is con­
cerned with the composition of the venire and its relationship to 
the petit jury only insofar as they provide evidence relevant to 
the ultimate question of discrimination. Thus, under the Four­
teenth Amendment, a defendant may challenge only the intentional 
exclusion of members of his own racial group. Batson, 476 U.S. 
at 96. In some cases, therefore, the State’s racial manipulation of 
the jury venire may violate the Fourteenth Amendment, but not 
the Sixth Amendment. In other cases, the State’s actions may 
violate only the Sixth Amendment. Thus, the constitutional pro­
tections afforded by the Sixth and Fourteenth Amendments, re­
spectively, are not redundant, and both must be given effect.

11 When a Sixth Amendment challenge is directed to the facial valid­
ity of a statute, Duren also requires a showing of “systematic” 
exclusion. 439 U.S. at 364. The case at bar, of course, does not 
involve any facial challenge to the peremptory challenge statute, 
and, thus, the “systematic” prong of Duren has no bearing here. 
It is enough, as the Court observed in Batson, that “peremptory 
challenges constitute a jury selection practice that permits ‘those 
to discriminate who are of a mind to discriminate.’ ” 476 U.S. at 
96 (citation omitted). At all events, to require something more in 
terms of “systematic” discrimination effectively would make the 
Sixth Amendment a dead letter, as Swain did with respect to the 
Equal Protection Clause. See Batson, 476 U.S. at 92-93.



- 15-

Once a prima facie fair cross-section violation has been 
established, the prosecutor must show that a “significant 
state interest” was advanced by the deployment of his 
peremptory challenges. Id. at 367. The prosecutor cannot 
prevail, of 0010*86, merely by invoking race or group affili­
ation because “[a] person’s race simply ‘is unrelated to 
his fitness as a juror.’ ” Batson, 476 U.S. at 87, 97 (cita­
tion omitted). Instead, the prosecutor must support his 
actions by reference to some legitimate, racially neutral, 
non-pretextual justification. See McCray v. Abrams, 750 
F.2d at 1132.

The deployment of peremptory challenges in a manner 
that subverts the fair cross-section guarantee must be sub­
ject to these reasonable limitations because the peremp­
tory challenge, as this Court unequivocally held in Batson, 
476 U.S. at 89, cannot take precedence over fundamental 
constitutional rights.

II.
R E L IE F  SHOULD B E  GRANTED IN THIS CASE UNDER  
BATSON  BECAUSE PETITIO NER HAS ESTABLISHED A 
PRIM A FACIE  FO U R TEEN TH  AM ENDM ENT VIOLA­
TION.

A. Given The Fundam ental N ature O f The R ight To The 
Equal P rotection  O f The Laws, This Court Should Give 
F ull R etroactive E ffect To Batson.

Almost two decades ago, Justice Harlan, in two thought­
ful dissenting opinions in Desist v. United States, 394 U.S. 
244, 256-69 (1969), and Mackey v. United States, 401 U.S. 
667, 675-702 (1971), articulated a set of principles to govern 
the retroactive effect of new decisions of this Court.12 In

12 We recognize, of course, that Justice Harlan’s analysis has not 
yet been fully adopted by this Court. See Yates v. Aiken, 108 S. 

(Footnote continued on following page)



- 16-

the intervening 20 years, this Court has extensively recon­
sidered the law of retroactivity, and has adopted many 
of those principles. See, e.g., Yates v. Aiken, 108 S. Ct. 
534, 537 (1988); Griffith, 107 S. Ct. at 713; United States 
v. Johnson, 457 U.S. 537, 549 (1982).

In the process of resurveying the metes and bounds of 
retroactivity law, this Court has not yet adopted Justice 
Harlan’s view that newly announced constitutional rules 
should be applied retroactively whenever they affect funda­
mental rights, without regard to whether they represent 
a “clear break” with the past. See Yates, 108 S. Ct. at 
537; Griffith, 107 S. Ct. at 716 (Powell, J., concurring). 
This case presents that opportunity.

In Mackey v. United States, Justice Harlan suggested 
that new constitutional rules should be made fully retro­
active “for claims of nonobservance of those procedures 
that . . . are ‘implicit in the concept of ordered liberty.’ ” 
401 U.S. at 693 (Harlan, J., dissenting; quoting Palko v. 12

12 continued
Ct. 534, 537 (1988); Griffith, 107 S. Ct. at 716 (Powell, J., con­
curring). Nonetheless, in addressing the retroactive application of 
Batson, we believe that the logical force of Justice Harlan’s opin­
ions in Desist and Mackey, and the extent to which the Court al­
ready has adopted the principles articulated there, warrant con­
sideration of these principles at the outset.

We also recognize that in Allen v. Hardy, 106 S. Ct. 2878, 2880 
& n .l (1986) (per curiam), this Court summarily held, without full 
briefing or oral argument, that Batson would not be applied retro­
actively to those cases on collateral review which became final be­
fore Batson was announced, and that the Court reached that con­
clusion because Batson was a “clear break” with past precedent. 
More recently, however, the Court in Griffith discarded the “clear 
break” doctrine in determining the retroactive effect that Batson 
should be accorded in cases that were pending on direct appeal 
when Batson was decided. Griffith, 107 S. Ct. at 714. As the Fifth 
Circuit recently noted, this Court’s decision in Griffith casts consid­
erable doubt on the continued vitality of the rationale in Allen. 
Procter v. Butler, 831 F.2d 1251, 1254-55 n.4 (5th Cir. 1987).



17-

Connecticut, 302 U.S. 319, 324-25 (1937) (Cardozo, J.)). 
Under Justice Harlan’s view, retroactive application should 
occur whenever the new rule implicates a “ ‘principle of 
justice so rooted in the traditions and conscience of our 
people as to be ranked as fundamental.’ ” 302 U.S. at 325 
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

The racial discrimination involved in Batson indisputably 
implicated fundamental principles of justice, because “[dis­
crimination on the basis of race, odious in all aspects, is 
especially pernicious in the administration of justice,” Rose 
v. Mitchell, 443 U.S. 545, 555 (1979), and is “at war with 
our basic concepts of a democratic society and a represen­
tative government.” Smith v. Texas, 311 U.S. 128, 130 
(1940). See also Vasquez v. Hillery, 474 U.S. 254, 262 
(1986); Taylor, 419 U.S. at 527. The remedy prescribed 
in Batson is therefore informed by the most basic prin­
ciples upon which our criminal justice system is founded. 
For that reason, Batson is precisely the type of case to 
which Justice Harlan’s view would grant full retroactive 
effect.

Given the fundamental nature of the rights which Batson 
protects, it would be improper to deny redress to those 
who, solely due to the fortuities of the judicial process, 
completed their direct appeals before Batson was decided. 
The chronological details of petitioner’s appeals bear no 
relation to whether he suffered the kind of discrimination 
which this Court condemned over 100 years ago in Strauder, 
condemned most recently in Batson, and, indeed, con­
demned in every intervening equal protection case, includ­
ing Swain.13 Moreover, there is no question here that

13 The central meaning of the Equal Protection Clause is, of 
course, “that those who are similarly situated be similarly 
treated.” Tussman & tenBroek, The Equal Protection of the Laws, 

(Footnote continued on following page)



18-

petitioner was denied his fundamental right to the equal 
protection of the laws.14 Because racial discrimination is 
at war with our concept of ordered liberty, and nowhere 
more so than in the context of our criminal justice system, 
which is empowered to take our very lives and liberties, 
the rule in Batson must be given retroactive effect.

13 continued
37 Calif. L. Rev. 341, 344 (1949). If, through the fortuities of the 
judicial process, a case reached this Court on direct appeal before 
the Court was prepared to announce the governing constitutional 
principle, that fact cannot provide any principled basis for 
distinguishing the case, or for denying to those who came first 
the relief which the Court has now deemed necessary to redress 
a fundamental constitutional violation. In fashioning a rule of 
retroactivity applicable to such cases, it is well to remember that 
“percolation” may be an indispensable part of our judicial process, 
but, as Justice Schaefer has aptly observed, the Court also must 
take care not to “ignore[ ] the impact of the law on real people.” 
Schaefer, Reducing Circuit Conflicts, 69 A.B.A. J. 452, 454 (1983).

Indeed, many of the cases that reached this Court prior to Bat­
son, when the Court (for its own institutional reasons) was not 
yet ready to expound the Constitution, may well involve factual 
circumstances far more susceptible to manipulation of racial prej­
udice than was the case in Batson itself. Similarly, many of them 
undoubtedly involve more serious penalties, such as capital punish­
ment, where the Eighth Amendment’s heightened demand for im­
partial fact-finding, untainted by racial prejudice or unfairness of 
any kind, is manifest. See, e.g., Lowenfield v. Phelps, 108 S. Ct. 
546, 551 (1988); Turner v. Murray, 476 U.S. 28, 35-36 (1986); Cali­
fornia v. Ramos, 463 U.S. 992, 998-99 (1983); Woodson v. North 
Carolina, 428 U.S. 280, 305 (1976). One cannot reasonably assert 
that the vindication of a criminal defendant’s right to have a jury 
selected without racial discrimination should be nullified by his ar­
rival on the steps of this Court before the doors were opened.
14 The prosecutor in this case used all of his peremptory chal­
lenges to exclude blacks, and could muster only patently pretextual 
explanations. See page 26, note 22, infra.



- 19-

B . B ecause The Princip les E stablished In Batson  P rotect 
And E nhance The R eliab ility  O f Crim inal Trials, They  
Should B e Applied R etroactively.

To preserve the integrity and reliability of the criminal 
justice system, this Court has given retroactive applica­
tion to new rules designed to enhance the reliability of 
the trial. See Ivan V. v. City o f New York, 407 U.S. 203, 
204 (1972) (per curiam); Roberts v. Russell, 392 U.S. 293, 
294-95 (1968) (per curiam). In Witherspoon v. Illinois, 391 
U.S. 510 (1968), for example, the Court held that the ex­
clusion for cause of certain veniremen, merely because 
they voiced general reservations about the death penalty, 
violated the Due Process Clause. Id. at 522-23. In accord­
ing full retroactive effect to this holding, this Court ob­
served (id. at 523 n.22; citations omitted):

[W]e think it clear . . . that the jury-selection stan­
dards employed here necessarily undermined “the 
very integrity of the . . . process” that decided the 
petitioner’s fate, . . . and we have concluded that 
neither the reliance of law enforcement officials . . . 
nor the impact of a retroactive holding on the ad­
ministration of justice . . . warrants a decision against 
the fully retroactive application of the holding we an­
nounce today.

Just as the integrity and reliability of the criminal 
justice process was undermined by the “stacking of] the 
deck” in Witherspoon (id. at 523), the prosecutorial use 
of peremptory challenges to skew the racial composition 
of the petit jury in Batson similarly jeopardized its truth­
seeking function. See Allen v. Hardy, 106 S. Ct. 2878, 
2880-81 (1986) (per curiam). Indeed, if the exclusion of 
blacks from petit juries were not thought to affect the 
jury’s truth-seeking function, then prosecutors would not 
have abused the peremptory challenge privilege, and the



- 20-

Batson decision would not have been necessary.15 But the 
Batson decision was necessary, in large part to protect 
and enhance the reliability of the criminal trial. In this 
sense, Batson is indistinguishable from Witherspoon and 
other decisions that this Court has deemed to warrant 
retroactive application.16

15 Prosecutors discriminate against black veniremen for only one 
reason, which goes to the very heart of the judicial process: they 
believe that eliminating blacks from the jury panel will affect the 
outcome of the case and make a conviction easier to obtain, a belief 
which is well-founded on social science studies. See, e.g., H. Kalven 
& H. Zeisel, The American Jury 196-98, 210-13 (1966); J. Rhine, 
The Jury: A  Reflection of the Prejudices of the Community, in 
Justice on Trial 40, 41 (D. Douglas & P. Noble, eds. 1971); R. 
Simon, The Jury and the Defense of Insanity 111 (1967); J. Van 
Dyke, Jury Selection Procedures: Our Uncertain Commitment to 
Representative Panels 33-35, 154-60 (1977); Adler, Socioeconomic 
Factors Influencing Jury Verdicts, 3 N.Y.U. Rev. L. & Soc. 
Change 1, 1-10 (1973); Bell, Racism in American Courts: Cause 
for Black Disruption or Despair?, 61 Calif. L. Rev. 165, 165-203 
(1973); Bernard, Interaction Between the Race of the Defendant 
and That of Jurors in Determining Verdicts, 5 L. & Psych. Rev. 
103, 107-08 (1979); Breeder, The Negro in Court, 1965 Duke L.J. 
19, 19-22, 29-30; Davis & Lyles, Black Jurors, 30 Guild Prac. I l l  
(1973); Gerard & Terry, Discrimination Against Negroes in the 
Administration of Criminal Law in Missouri, 1970 Wash. U.L.Q. 
415, 415-37; Ginger, What Can Be Done to Minimize Racism in 
Jury Trials?, 20 J. Pub. L. 427, 427-30 (1971); Gleason & Harris, 
Race, Socio-Economic Status, and Perceived Similarity as Deter­
minants of Judgments by Simulated Jurors, 3 Soc. Behav. & Per­
sonality 175, 175-80 (1975); McGlynn, Megas & Benson, Sex and 
Race as Factors Affecting the Attribution of Insanity in a Murder 
Trial, 93 J. Psych. 93 (1976); Ugwuegbu, Racial and Evidential 
Factors in Juror Attribution of Legal Responsibility, 15 J. Experi­
mental Soc. Psych. 133, 143-44 (1979); Comment, A Case Study 
of the Peremptory Challenge: A Subtle Strike at Equal Protec­
tion and Due Process, 18 St. Louis U.L.J. 662, 673-83 (1974).
16 To the extent that prosecutors should now claim detrimental 
reliance, that claim sounds hollow. This Court has never condoned 
discrimination in jury selection, and the only change effected by 
Batson was a change in the scheme of proof to be used in estab­
lishing discrimination. Moreover, prosecutors cannot claim prejudice

(Footnote continued on following page)



- 21-

C. Reliance On Swain v. Alabama After This Court’s 
Denial Of Certiorari In McCray v. New York Was Er­
roneous.

Soon after this Court announced its decision in Swain 
v. Alabama, it became clear that the Court’s attempt to 
set the balance—between the constitutional freedom from 
discrimination and the peremptory challenge privilege— 
was a failed experiment. As Justice White noted in Batson, 
prosecutorial discrimination was widespread after Swain. 
476 U.S. at 101 (White, J., concurring). Moreover, as Justice 
Powell noted, the evidentiary burden that Swain had im­
posed upon criminal defendants was both “crippling,” 476 
U.S. at 92, and doctrinally inconsistent with less onerous 
evidentiary burdens developed in subsequent equal protec­
tion cases. Id. at 93. See also Castaneda v. Partida, 430 
U.S. 482, 494-95 (1977); Village of Arlington Heights v. 
Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 
(1977); Washington v. Davis, 426 U.S. 229, 241-42 (1976); 
Alexander v. Louisiana, 405 U.S. 625, 630-32 (1972).

Indeed, the continuing vitality of Swain was seriously 
questioned in the unprecedented opinions announced in 
connection with this Court’s denial of certiorari in McCray 
v. New York. In their dissent from that denial of cer­
tiorari, Justices Marshall and Brennan expressed the view 
that the Swain evidentiary burden was inappropriate, 461 
U.S. at 968-69, and they urged plenary review “to re­
examine the standard set forth in Swain.” Id. at 966. 
Justice Stevens, joined by Justices Blackmun and Powell, 
voted to deny the petition, but added (id. at 961-63): 16 *

16 continued
from having failed to preserve relevant information, when any such 
failure was based, in turn, on some tactical advantage which, under 
Swain and its progeny, prosecutors perceived to exist. This Court 
has never held such “[ujnjustified ‘reliance’ [to be] . . .  a bar to 
retroactivity.” Solem v. Stumes, 465 U.S. 638, 646 (1984).



- 22-

My vote to deny certiorari . . . does not reflect dis­
agreement with Justice Marshall’s appraisal of the im­
portance of the underlying issue. . . .  I believe that 
further consideration of the substantive and pro­
cedural ramifications of the problem by other courts 
■will enable us to deal with the issue more wisely at 
a later date. . . .  In my judgment it is a sound exer­
cise of discretion for the Court to allow the various 
States to serve as laboratories in which the issue re­
ceives further study before it is addressed by this 
Court.[17]

Taken together, these two opinions clearly demonstrate 
that a majority of the Court agreed in McCray that the 
lower courts should undertake further analysis with re­
spect to the problem of racial discrimination in jury selec­
tion, and that Swain should not be followed blindly. 
Numerous state and federal courts recognized that Swain 
had been questioned,18 but few of them accepted the in-

17 In his opinion, Justice Stevens clearly invited the lower courts 
to reexamine the issues involved in Swain and its progeny, to un­
dertake an independent analysis, and to avoid a slavish or un­
critical reliance on Swain. That this invitation was extended to 
both the state courts and the lower federal courts is evidenced 
by Justice Stevens’ observation that the absence of “conflict of 
decision within the federal system” counseled in favor of postpon­
ing plenary review. See 461 U.S. at 962. At least two federal 
courts so interpreted this observation. See Simpson v. Common­
wealth, 622 F. Supp. 304, 308 (D. Mass. 1984), rev’d, 795 F.2d 216 
(1st Cir.), cert, denied, 107 S. Ct. 676 (1986); McCray v. Abrams, 
576 F. Supp. 1244, 1246 (E.D.N.Y. 1983), affd in part and vacated 
in part, 750 F.2d 1113 (2d Cir. 1984). Finally, Justice Stevens noted 
in Batson, 476 U.S. at 110-11 n.4, that “[t]he eventual federal 
habeas corpus disposition of McCray [v. Abrams], of course, proved 
to be one of the landmark cases that made the issues in this case 
ripe for review.”
18 See Vukasovich, Inc. v. Commissioner, 790 F.2d 1409, 1416 (9th 
Cir. 1986); Bowden v. Kemp, 793 F.2d 273, 275 n.4 (11th Cir.), cert, 
denied, 106 S. Ct. 3289 (1986); United States v. Hawkins, 781 F.2d 
1483, 1486 (11th Cir. 1986); Jordan v. Lippman, 763 F.2d 1265,

(Footnote continued on following page)



•23

vitation to reexamine the issues involved, and virtually 
all continued to follow Swain without any critical analysis. 
Joining these ranks was the Seventh Circuit, which, within 
a year of the denial of certiorari in McCray, declared that 
Swain remained “controlling.” United States ex rel. 
Palmer v. DeRobertis, 738 F.2d 168, 172 (7th Cir.), cert, 
denied, 469 U.S. 924 (1984). See also United States v. 
Clark, 737 F.2d 679, 682 (7th Cir. 1984).

In light of McCray, the mechanical reliance on Swain 
by the courts below was error. By relying on questioned 
authority when fundamental constitutional rights are at 
stake, courts distort the doctrine of stare decisis, and, 
more important, abdicate their essential obligation to up­
hold the Constitution (Barnette v. West Virginia St. Bd. 
of Educ., 47 F. Supp. 251, 253 (S.D. W. Va. 1942) (3-judge 
court), affd, 319 U.S. 624 (1943)):

[judges] would be recreant to our duty as judges, if 
through a blind following of a decision which the Su­
preme Court itself has . . . impaired as an author­
ity, we should deny protection to rights which we 
regard as among the most sacred of those protected 
by constitutional guaranties.[19]

is continued
1283 (11th Cir. 1985); Booker, 775 F.2d at 766-67; Prejean v. Block- 
bum, 743 F.2d 1091, 1104 n .l l  (5th Cir. 1984); McCray v. Abrams, 
750 F.2d at 1116. See also State v. Neil, 457 So. 2d at 483-84; State 
v. Gilmore, 103 N.J. at 518, 511 A.2d at 1154-55.
19 In constitutional cases, where erroneous decisions cannot be 
cured by legislation, this Court has long recognized the duty of 
the judiciary to “ ‘bow[ ] to the lessons of experience and the force 
of better reasoning. . . .’ ” Edelman v. Jordan, 415 U.S. 651, 671 
n.14 (1974) (Rehnquist, J.; quoting Burnet v. Coronado Oil & Gas 
Co., 285 U.S. 393, 407-08 (1932) (Brandeis, J., dissenting)). See also 
Norris v. United States, 687 F.2d 899, 904 (7th Cir. 1982) (Posner, 
J.) (“to continue to follow [doubtful precedent] blindly until it is 
formally overruled is to apply the dead, not the living, law”); 
Browder v. Gayle, 142 F. Supp. 707, 717 (M.D. Ala.) (3-judge court) 

(Footnote continued on following page)



- 24-

To correct the lower courts’ misguided application of 
stare decisis in this case, this Court should hold that con­
tinued reliance on Swain after the denial of certiorari in 
McCray warrants reversal.20

III.
WHEN THE PROSECUTOR OFFERED JUSTIFICATIONS 
FOR HIS USE OF PEREMPTORY CHALLENGES, THE 
TRIAL COURT SHOULD HAVE CONSIDERED WHETHER 
THE JUSTIFICATIONS WERE PRETEXTUAL.

Even if this Court determines that Batson should not 
be given retroactive effect, and that the courts below 
properly continued to rely on Swain after the denial of 
certiorari in McCray, petitioner still is entitled to a hear­
ing on his equal protection claim.21 This is so because the

19 continued
(Rives, J.) (“[w]e cannot in good conscience perform our duty as 
judges by blindly following the precedent of Plessy v. Ferguson 
. . . when our study leaves us [believing] . . . that the separate 
but equal doctrine can no longer be safely followed as a correct 
statement of the law”), ajfd, 352 U.S. 903 (1956) (per curiam).
20 This Court’s ruling in Allen v. Hardy has no bearing on the 
foregoing argument, which focuses, not on the retroactive effect 
that should be accorded to Batson, but on the precedential effect 
to which Swain was entitled after this Court denied review in Mc­
Cray. Moreover, Allen is inapposite because that conviction be­
came final before the denial of certiorari in McCray, and the pres­
ent contention was therefore unavailable in Allen.
21 The court below erred in concluding that the claim is pro- 
cedurally barred (J.A. 17 n.6). At every level of the state and 
federal proceedings, the State responded to petitioner’s claims by 
contending that petitioner was raising an equal protection claim 
controlled by Swain (J.A. 41 (Cudahy, J., dissenting)). Moreover, 
because the Illinois Appellate Court and the federal district court 
both rejected petitioner’s claim on the ground that he had failed 
to demonstrate systematic exclusion under Swain (J.A. 41 n.2 
(Cudahy, J., dissenting); J.A. 5-6), those courts specifically con­
sidered and rejected the equal protection issue on the merits. 
Thus, even if petitioner had not actually raised the issue at each

(Footnote continued on following page)



■25-

prosecutor in this case chose to waive the benefit of the 
Swain presumption, and, instead, put the matter at issue 
by volunteering “explanations” for his peremptory chal­
lenges.

Presumptions generally are rooted in considerations such 
as fairness, public policy, probability, and judicial econ­
omy. Basic Inc. v. Levinson, 108 S. Ct. 978, 990 (1988). 
Specifically, the Swain presumption was principally 
grounded in the public policy concern that a prosecutor 
should have wide discretion in exercising his peremptory 
challenges in a particular case, without being forced to 
explain his motives. See Swain, 380 U.S. at 222. However, 
while the Swain presumption may have served an impor­
tant purpose, presumptions cannot be applied mechanical­
ly, without regard either to their purposes or to the par­
ticular circumstances of the case. Courts “must not give 
undue dignity to [this] procedural tool and fail to recognize 
the realities of the particular situation at hand.” Panduit 
Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1581 
(Fed. Cir. 1984) (per curiam).

The “reality” here is that there was no principled rea­
son for the courts below to have given effect to the Swain 
presumption in the particular circumstances of this case. 
By making a tactical decision to “explain” the reasons 
for his peremptory challenges (and thus, perhaps, neutra­
lize a trial judge who had doubtless noticed that all 10 
of the prosecutor’s challenges had been deployed against 
blacks), the prosecutor himself defeated the central pur- 21

21 continued
level in the state courts, the issue would now properly be before 
this Court. See Ulster County Court v. Allen, 442 U.S. 140, 152-54 
(1979); United States ex rel. Ross v. Franzen, 688 F.2d 1181, 1183 
(7th Cir. 1982) (en banc). See also J.A. 41-42 & nn.1-2 (Cudahy, 
J., dissenting).



- 26-

pose of this presumption. At that point, the presumption 
should have disappeared.

Moreover, the prosecutor’s explanations themselves es­
tablished racial discrimination.22 Certainly, the Swain pre­
sumption of propriety was not intended to preclude judi­
cial action in the face of admitted discrimination, as Justice 
White, the author of Swain, confirmed in Batson. 476 U.S. 
at 101 n.* (White, J., concurring). See also Tenneco Chem­
icals v. William T. Burnett & Co., 691 F.2d 658, 663 (4th 
Cir. 1983) (citations omitted) (“a party may not rely on 
a presumption when evidence from its own case is incon­
sistent with the facts presumed”). Similarly, the Swain 
presumption should not be read to preclude judicial scru­
tiny in the present case. The pretextual justifications of­
fered by the prosecutor demonstrate racial discrimination 
with force equal to that of an outright admission, and 
therefore require judicial scrutiny.

Because there is no credible reason for giving effect to 
the Swain presumption once the prosecutor has volun­
teered his pretextual “reasons” for exercising his peremp­
tory challenges, that presumption should not preclude judi­
cial inquiry into the validity of those reasons. The Ninth 
Circuit made this point in Weathersby v. Morris, 708 F.2d 
1493, 1496 (9th Cir. 1983) (citation omitted), cert, denied, 
464 U.S. 1046 (1984):

22 Judges Cudahy and Cummings were not the only judges to 
remain unmoved by the prosecutor’s pretextual explanations (J.A. 
48 & n.6 (Cudahy, J., dissenting)). The Illinois Appellate Court also 
was unimpressed by the State’s justifications (People v. Teague, 
108 111. App. 3d 891, 895, 908, 439 N.E.2d 1066, 1069-70, 1078 (1st 
Dist. 1982), cert, denied, 464 U.S. 867 (1983)), and, indeed, none 
of the judges who have heard this case has ever suggested that 
the prosecutor’s explanations are credible.



- 27-

Cases where the prosecutor at trial volunteers his 
or her reasons for using peremptory challenges . . . 
present a situation distinguishable from Swain. . . .  
Our reading of Swain, convinces us that in such cir­
cumstances a court need not blind itself to the ob­
vious and the court may review the prosecutor’s 
motives to determine whether “the purposes of the 
peremptory challenge are being perverted.”

In Garrett v. Morris, 815 F.2d 509, 511 (8th Cir.), cert, 
denied, 108 S. Ct. 233 (1987), the Eighth Circuit also con­
cluded that the presumption must fall away in such cir­
cumstances because “the court has a duty to satisfy itself 
that the prosecutor’s challenges were based on constitu­
tionally permissible trial-related considerations, and that 
the proffered reasons are genuine ones, and not merely 
a pretext for discrimination.”

In these limited circumstances, inquiry into the prose­
cutor’s volunteered explanations must be permitted if 
courts are to avoid being made unwilling “accomplices in 
the willful disobedience of a Constitution they are sworn 
to uphold.” Elkins v. United States, 364 U.S. 206, 223 
(1960). The lower courts’ mechanical invocation of the Swain 
presumption therefore warrants reversal here.



- 28-

CONCLUSION

The judgment of the United States Court of Appeals 
for the Seventh Circuit should be reversed and the cause 
remanded.

Respectfully submitted,

C o n r a d  K. H a r p e r  
S t u a r t  J. L a n d  

Co-Chairmen 
N o r m a n  R e d l ic h  

Trustee
W il l ia m  L. R o b in s o n  
J u d it h  A. W in s t o n  
LAWYERS’ COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW 
Suite 400
1400 Eye Street, N.W. 
Washington, D.C. 20005

B a r r y  S u l l iv a n  
Counsel of Record 

B a r r y  L e v e n s t a m  
J e f f r e y  T. S h a w  
JENNER & BLOCK 
One IBM Plaza 
Chicago, Illinois 60611 
(312) 222-9350

(202) 371-1212
Attorneys for Amicus Curiae 

Dated: May 12, 1988