Teague v. Lane Brief Amicus Curiae
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May 12, 1988

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Brief Collection, LDF Court Filings. Teague v. Lane Brief Amicus Curiae, 1988. 4c5bb1cd-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d1b7f77b-a9b0-4f22-a396-6516c0982e40/teague-v-lane-brief-amicus-curiae. Accessed April 27, 2025.
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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