*1 him to to allow have no choice we might have had rights he

waive whatever Elrod, 832 F.2d that rule.

under Justice Hence, (7th Cir.1987). af- we court.

firm the district

III. Conclusion court’s denial AFFIRM district

We recoupment. The dis- motion

Hribar’s grant authority had no such judge

trict

motion, rights waived his under and Hribar appropriate legal remedy.

RIPPLE, Judge. Circuit view, my

I concur in the result. consider the

obligation to substance

motion, moving party not the label the it, required the district court to

places upon recoupment” a “motion for

consider the However, 60(b) on this motion.

Rule

record, say I cannot that the district declining grant his discretion

abused Accordingly, join judgment I

relief.

the court. DAVIS,

Hursey Petitioner-Appellee,

WARDEN, JOLIET CORRECTIONAL STATEVILLE; AT Mi-

INSTITUTION Lane, Director, Department

chael

Corrections, Illinois, Respon- State of

dents-Appellants.

No. 88-1590. Appeals, States Court of

Seventh Circuit.

Argued Sept.

Decided Feb. *2 Postorius, Ill., Atty.

William P. Gen. Of- fice, Chicago, respondents-appel- Ill. for lants. Schmiedel, Foce., People’s

Peter J. Law Ill., Chicago, petitioner-appellee. BAUER, WOOD, Judge, Before Chief Jr., FLAUM, Judges. Circuit WOOD, Jr., HARLINGTON Circuit Judge. Davis,

Hursey prisoner a black convicted attempted murder and theft an all- jury, County white claimed that the Cook system violated constitu- tional selected from a fair community. cross section of the Both the respondent summary and Davis moved for judgment. granted The district court Hur- sey petition Davis’s for writ of habeas cor- pus summary judgment; on the motion for respondent appeals. For the reasons below, set out we reverse the district judgment granting petition court’s Davis’s corpus judgment habeas enter on summary judgment in the motion for favor respondent.

I. FACTS 27, 1981, Hursey ap- On October Davis peared in the Cook circuit court Plaines, Illinois, located in Des a northern Chicago. charged suburb of The State attempted Davis with murder and auto February theft in connection with the shooting police of a Des Plaines white officer. trial, After

Prior to Davis’s counsel discovered the Illinois Court denied review, petitioned further Davis every person list was federal district court for a writ corpus of habeas trial, day Davis’s counsel white. pursuant 2254, alleging to 28 U.S.C. § requested question forty that the court County jury the Cook vio- they prospective jurors as to how *3 lated his sixth and fourteenth amendment selected to serve the Des Plaines court- to trial impartial jury. a fair and house, alternative, inor dismiss them. argued jurors Defense counsel During discovery granted by the district According randomly were not selected. to court, deposed defense counsel Mr. Daniel counsel, array composed Covelli, Jr., defense A. the county jury supervisor people predominantly county jury supervisor, of who lived white in 1981. The along duties, County assigned and the with his other persons northwest suburbs Cook jury duty summoned for predominantly white side of the to courtrooms in northwest parts various County. did City Chicago.1 He described another Covelli procedure not recall the exact used in ju- Des Plaines criminal trial in which the steps Davis’s case but outlined the he if rors had asked the Des Plaines been commonly would Approximately take: courthouse was “convenient” for them. potential jurors to 1000 reported to the court, listening The trial after to Davis’s Daley Chicago Center in every Monday for counsel, challenging denied the motion jury duty.2 Center, At Daley members array question prospec- and refused to jury supervisor’s of the staff called at ran- concerning jurors tive selection approximately dom twice the number of process. trial stated that he The court needed, using names bingo-type machine “outrageous” found defense counsel’s alle- peapot. called a Covelli’s staff then took gation that blacks were excluded from the prospective jurors to a courtroom jury list. coming where Covellithanked them for The convicted The trial Davis. persons living asked those in or near the court denied Davis’s motion for a trial new jury duty suburbs to volunteer for at sub- him and sentenced to concurrent terms of According urban courthouses. to his testi- fifty years attempted murder and five mony, like, something Covelli said “Be kind years appealed, for theft. Davis then chal- your jurors. large county. fellow It’s a lenging constitutionality of the area, If you live close to that it would be system. jurors.” easier on other If the suburban court needed more than would vol- Appellate The Court of Illinois reduced unteer, picked Covelli’s staff the rest ran- fifty thirty years Davis’s sentence from domly. using Covelli ceased this rejected Davis’s claim that the trial around 1983. unconstitutionally deprived court him of a representative from a drawn cross sec- summary judgment Both sides moved for community. appellate tion of the court petition corpus. on the writ habeas found, claim, in rejecting defendant’s motion, In support of the Davis’s counsel question jurors the trial court’s failure to the affidavit of statistician submitted Ste- did Whitman, not constitute “reversible error.” See ven Whitman. his review of Davis, People Ill.App.3d 77 Ill. composition venire Davis’s 415, 418, (1984). case, Dec. probability N.E.2d stated that the of select- Specifically, defense counsel read off resi- voters’ lists. The Illinois statutes order the dences of the different members of the venire. commissioners to summon from voter did Defense counsel not name the homes of all listings. lists or drivers’ license holder Ill.Ann. venire, however, forty members (Smith-Hurd 1987). Stat. ch. also 78 25 ¶ failed to list the residences of all members People Traeger, ex rel. Lasecki v. 374 Ill. in the record. 29 N.E.2d Because the matter dispute suggests is not in and the statute Although testify Mr. Covelli did not as to the lists, potential jurors came from voters’ we will prospective jurors exact method used to call accept parties' presumption. Center, Daley parties presume both that the potential jurors randomly selected from systematic exclusion of the is due to jurors at random from the ing forty white jury-selection process. group was sev- in the population Cook entire added, million. He “the in one en chances Missouri, 357, 364, 99 Duren peo- group forty white selection of (1979). Once County, population of Cook ple from the prima defendant has made a facie Illinois, totally inconsistent with a ran- elements, showing these the burden as to dom, process.” racially neutral to the state to show that it has shifts granted peti- overriding, significant state interest. Id. Davis’s The district summary corpus at 670. for writ habeas tion and remanded the case to the judgment Group Community B. Distinctive a new trial. The district state court for *4 parties dispute that defendant The do not prima court held that Davis established prong the first has satisfied Duren of blacks systematic exclusion facie case Duren, group excluded test. Under venire, respondent which the from the in the from the venire must be distinctive adequately refute. The district failed to community. agree All that blacks are a respondent’s then denied the motion court group community. in the distinctive See judgment and the to alter or amend Virginia, 100 Strauder v. U.S. West respondent appealed. (1880). 25 L.Ed. 664

II. ANALYSIS Representation Fair and Reasonable C. Precedent A.Supreme Court Community Louisiana, Duncan prong The second of the Duren test (1967), 20 L.Ed.2d 491 88 S.Ct. presents greater difficulties. this Under extended the sixth amend- Supreme Court prong, prove second defendant must that impartial right to an to defend- ment representation of blacks on list proceedings. Defining the ants in state and in relation to the is not fair reasonable of the sixth amendment that ex- elements community. of blacks in the This number states, Court has tend hinges upon test element of Duren petit jury “the selection of a from a held disputed geographic scope of the communi- representative cross section of the commu- ty from which the state must draw the component of the nity is an essential Sixth venire under the sixth and fourteenth Taylor Amendment trial.” permits If the amendments. Constitution Louisiana, 522, 528, community this court to define as a lesser 692, 697, see also County, area than Cook the court must Lane, Teague v. examine the issue of fairness and reason- — Cir.1987), U.S. -, granted, community ableness with that smaller in The S.Ct. analysis history mind. From our inquiry compo- fair-cross-section has three precedent, the sixth amendment and court nents: we find that the district court did not err in prima In order to establish a facie viola- evaluating the fairness and reasonableness requirement, tion of the fair-cross-section in of Davis’s venire relation to the racial (1) the defendant must show makeup County. of Cook group alleged to be excluded is a “dis- (2) group community; in the tinctive” Legislative History 1. representation group that the juries from which are selected is The venires district court found that early Congress not fair and reasonable relation to the intended the venire to be persons of such in the larger number communi- drawn from an area than what we (3) underrepresentation ty; generally and that this community.3 consider to be a laws, following they 3. The district court used the defini- under the same in which share com- community: body people having monly responsibilities organization tion of "a organization living place, government capable common in the same and maintenance of a un- — vicinage ap- ambiguous concept of The court, Congress According the district Congress. early parently also troubled the attempt to incor- Madison’s rejected James Rights, Bill of Congress wrote the When sixth “vicinage” the term porate include whether to the members debated term adopted the instead “vicinage” in sixth amend- the term from which the area to define “district” n. Williams, at ment. See The district drawn. jury was be at 1903 n. never was stated, Amendment “The Sixth Madison, some worried According to James trial with a defendant provide a intended if too defined vague the term was comprised nor backyard, his concept law, argued that the others while neighbors of victim.” or the families “trial in interpreted if too narrow in the state trial right to 95-96, at county.” id. See vicinage concept of from the arose district they compromised. Ultimately, 1903-04. mean different concept came Congress 90 S.Ct. at id. at time, place, and on the depending things add- with the adopted the sixth amendment “vicinage,” term affected. The people speedy public right to a phrase ed .“the “neighborhood” literally meant times, early trial, impartial jury of the State by an Florida, 399 “county.” See Williams shall have been wherein the crime district n. 93 n. committed, have been which shall district *5 law_” Connor, (1970); The Consti- 446 26 L.Ed.2d U.S. previously by ascertained the Jury aby Trial Right added). to a Const., (emphasis tutional VI amend. of 197, 198-99 U.Pa.L.Rev. Vicinage, 57 that found Although the district court phrase jury “a the (1909). England, larg- an area must drawn from the be ju- meant vicinage” that from the drawn satisfy term community to a er than immediate locali- drawn from rors were state,” certain are not as we “district time, expected Jurors, at that ty. congressional early debates that knowledge of the independent their use “vicinage” lead neces- term history of The American case. to decide the facts that We believe sarily this inference.4 hand, argued that colonists, the other on language of the and state” the “district England vicinage prohibited concept of parameters places some sixth amendment of treason accused shipping colonists jurors from draw the legislature’s power to on a Blume, The trial. legislature across the a per prevent se not ocean but does Criminal Cases: Consti- from which delineating Place Trial a smaller area from of of Venue, 43 history suggests, Mich.L. vici- Vicinage and As jury. a tutional to draw Vicinage, colo- un- 59, (1944). concept for the affected an elastic nage is Rev. and, such, should be nists, right policies to a as derlying not invoke the did legislative right trial left to a locality of cases majority immediate said, “[Vicinage] body. See James Madison North America. As the continent of on the discretion 65-66; Connor, at left to Blume, supra therefore at must be supra according to modify it vicinage legislature History suggests 198-99. Williams, 399 U.S. at large describing a circumstances.” concept an elastic was (citing 2 M. n. 35 35, at 1902 underlying 94 n. 90 S.Ct. area, on the depending small Federal Conven- Farrand, of the Records evoked. policy Warren, History Light ty.” pur- New on incorporating for superior der law of 49, Act, Judiciary management.” v. 37 Harv.L.Rev. Davis poses of taxation and Federal Madison, Warden, slip op. n. 1 (1923) [1988 at Madi- (quoting No. 85 C Works James 14, 1789). Pendleton, Sept. 17620]. WL son to Edmund suggests from which passage area defeat about the comments James Madison’s than early jurors never smaller drew courts support vicinage offer some exclu- county. not relied Other courts have a States, position: "In court’s some for the district interpre- expansive sively passage for an body whole are drawn from and we criterion the fair-cross-section tation of others, indiscriminately; community to do the same. are inclined larger counties, comprehending a number districts single only coun- from a and in a few supra Blume, see also (1911)); tion 332 division of the district rather than the Compare Ruthenberg (“The people entire district. jury guaranteed to the States, 480, 482, United 245 U.S. 38 S.Ct. not a the various territories was (1918) Salinger 62 L.Ed. 414 jury to selected from such ‘county’ but a be Loisel, 224, 232, 235, 265 U.S. 44 S.Ct. authority might legislative places as the 519, 522, 523, (1924) 68 L.Ed. 989 provide.”) States, Barrett v. United U.S. 228-30, 327, 331-32, 18 S.Ct. 42 L.Ed. 723 Approach Respondent’s to the Com- (1897). Lower courts have held therefore munity Issue that a satisfies the He Respondent takes a different tack. sixth amendment if the is selected argues petitioner has no constitutional from either the entire district or a division drawn from the entire area of that district. See United States v. County. prece- Seventh Circuit Young, 618 F.2d (8th Cir.), 1287-88 asserts, dent, permits he denied, cert. prospective jurors system that excludes United v. Flor- L.Ed.2d 52 States living distance from within reasonable ence, (4th Cir.1972); Katz 456 F.2d See United States v. the courthouse. (1st Cir.), 321 F.2d Clancy, 631-32 Cir. denied, cert. grounds, 1960), rev’d on other (1963). L.Ed.2d 144 circuits Two have even that, gone so far as to hold when a district Furthermore, he states that this court need divisions, is divided into may a defendant constitutionally define Cook be tried a division different than the community simply because an Illinois division where crime was committed. county-wide statute summons on a Mase, See United States v. basis. (2d Cir.1977), *6 98 S.Ct. glance, respondent’s position ap- At first James, United States v. 528 F.2d 1021 pears correspond applying to with cases denied, (5th Cir.1976), cert. jury the sixth amendment to the federal (1976).5 system. According to the Su- Court, preme the sixth amendment entitles majority jury systems The jury a to a defendant drawn from the fed- cases, however, litany complied this with eral district in which the crime was commit- court-imposed designating laws or rules the ted, although jury may the be drawn from area from jury which to draw the list.6 A appropriate scope placed upon by Judiciary 5. For a discussion of the construction it Act selection, Cates, jury grand see United expressly States authorizing drawing of 1789 of a (1st Cir.1974) (grand jury 485 F.2d 30 need district, jury part from a of the and the continu- not be drawn from the division in which the legislative judicial practice ous and from the committed); Gray crime was United States v. beginning." See 245 U.S. at 38 S.Ct. at 169. son, (5th Cir.1969), 416 F.2d 1076 cert. In United States v. Florence the Fourth Circuit denied, 24 L.Ed.2d stated, [Jury "Since the Selection and Service (1970) (defendant may by grand 753 be indicted requires only Act of 1968] that selection be jury from drawn division other than division in counties, jurors parishes, made of from the or committed); Zerbst, which crime was Marvel v. political surrounding similar subdivisions (10th Cir.), 83 F.2d 977 299 place precise desig- where the court is held—the (1936) 57 81 L.Ed. 382 by gives nation to be determined the court—it no (grand jury may exclusively be drawn from to a from the entire district where though eastern division even crime was commit- plan encompassing there is a divisions.” See western); Brown, ted in United States v. 281 added). Likewise, (emphasis 456 F.2d at 49 (E.D.La.1968) (selection F.Supp. 36-37 Fifth, Eighth, and Second Circuits dismissed grand jurors properly was limited to the seven challenges juries defendants’ to drawn from di- parishes to nearest the court because selec- visions of the district because Rule 18 of the random). system tion was Federal Rules of Criminal Procedure was previous Ruthenberg rejected requirement amended to delete the 6. The Court in challenge sixth amendment a that a defendant be to venire drawn tried in the division in district, citing plain from a division of the Young, "the which the crime occurred. See Amendment, 1288; Mase, 675; contemporary James, text of the Sixth at 556 F.2d at

1009 federal district County lines place.”) court ascertained body or lawmaking pa- determine magically (the not lines do “community” comparable area believe, community. We must be of a rameters jury list which from area is court, decision some- however, this that because before drawn). case In the that should decision legislature arbitrary, it is a by the what designated area body area that authorized possible with when not coincide left be does court as the A designate us well-inten- have matters. on legislate would such respondent to for court or this community.7 supervisor, tioned the area matter, not redefine should defining the large extent To a has ordered legislature which the sixth purposes community for justi- a lawful without be jury list'to drawn arbitrary decision. an is Illinois an because precisely It is fication. at 701 at Taylor, from which areas stipulated law times different at differ (“[Cjommunities defendant to drawn are juries be at section a fair cross isWhat places. reasonably fairly and to venire entitled necessarily a fair is not place time one area.8 of that representative different time or at another cross section impartial trial to an favorable to be most rule did the court only in which case The at 1021. unnecessary expense or un- cre- legislatively not to incur rely court or arguably any part selec- Deciding citizens duly burden the was ated laws Katz. may west excluding prospective rule uti- Such county jury service. with tion constitu- County, county. Massachusetts Worchester tional, divisions within lize established and took law the federal cited the court (Smith-Hurd). 32.2 78 Ill.Ann.Stat. ¶ so [system] has been "judicial notice that County made of Cook circuit court The 9. many years.” See 321 regard selection: following rule with County of following Cook (c) Parts County applicable statute The Illinois drawing electors purpose of for the reads: favorable most be are service determined containing or which county single circuits incurring un- impartial while trial one million more than may contain hereafter burdening unduly necessary expense nor inhabitants, from such may be drawn County service: of Cook citizens county as determined parts of the entire I the 1. Part Zip areas: Code Part II 60016 60018 60015 60010 *7 60093 60103 60091 60090 60077 60076 60070 60068 60160 60161 60153 60131 60130 60120 60106 60104 60172 60171 60165 60164 60163 60162 60302 60303 60301 60204 60202 60203 60201 60195 60610 60611 60607 60606 60605 60601 60305 60304 60626 60625 60624 60622 60618 60614 60613 60612 60641 60644 60640 60639 60635 60634 60631 60630 60659 60660. 60656 60651 60648 60647 60646 60645 Zip areas: Code III Part 60422 60425 60419 60415 60411 60409 60406 60402 60443 60439 60438 60430 60429 60426 60457 60455 60456 60454 60453 60471 60473 60469 60466 60465 60464 60463 60462 60482 60477 60480 60476 60475 60609 60608 60558 60546 60534 60525 60629 60628 60627 60623 60621 60620 60619 60617 60649 60643 60642 60638 60637 60636 60633 60632 60655 60653 60652 60650 them, regulating as- service, their impaneling jury ser- (d) summoned be Electors shall supervis- judges, and signment various facility Coun- that Part within vice recording services. of their ing drawn. names were ty which their from 0.4(c). County ap- places for of Cook by Judge order fix Court Rules shall Circuit Chief for response to summons pearance in permit rules circuit Illinois 8. The assembly consistent duty for county (c) above. to draw from three areas-the half of entirety, the northern county in its designate Judge (e) or his Chief Excuse. The codes, zip or the south- jurors’ County based on excusing jurors charge of have shall 1010 munity prior com- scope challenge to a court

New cases discuss See, sixth munity e.g., Bradley v. purposes system. selection express- Court, analysis but the few decisions Superior Judges 26, F.Supp. 372 legislature ly permit the issue address (C.D.Cal.1974), part and dis 31 aff'd larger community as an area to define the (9th Cir.1976) part, missed in 531 F.2d 413 Brad- neighborhood. than a suburb or (county-wide jury valid be- Superior Los ley Judges Court provide cause California statutes for trials 413, Angeles County, 531 by county). State, 891, Cir.1976); Alvarado 486 P.2d principle This is evident from the courts’ 1971); v. United (Alaska Jeffers cf. prior approach to the fair-cross-section cri States, 1338, (N.D.Ind. F.Supp. Court, court, terion. The this 1978) Jury (“community” as used in Selec- other federal courts treated have the com Act refers to entire divi- tion and Service munity in jury challenges as coex district, merely city). sion or geographic tensive with the area from permit courts While some legislature which the court or ordered the more limited to be drawn from a area than See, e.g., Duren v. Mis venire drawn. division, county no court has faced a souri, 439 U.S. 58 L.Ed. jurors, prospective situation in which once Louisiana, (1979); Taylor v. 2d 579 through process of gathered random se S.Ct. lection, themselves into smaller divided (1974); Peters v. 407 U.S. Kiff according em units to convenience.9 Court (1972); Carter v. S.Ct. 33 L.Ed.2d 83 ployees prospective jurors can not rede Commission, Jury 320, 322, 396 U.S. community, implicitly fine once it has been (1969); S.Ct. Glos court, by legislature or state defined States, ser v. United violating principle without behind the Texas, (1942); 86 L.Ed. 680 Smith v. language fair-cross-section criterion. The 85 L.Ed. 84 supports of the sixth amendment itself (1940); Ruthenberg v. United conclusion. The sixth amendment states 169; Gibson v. U.S. at 38 S.Ct. at by “a is entitled to a trial defendant ... ... Zant, (11th Cir.1983); Unit 705 F.2d 1543 impartial jury of the state and district Brady, ed States v. previ shall have ..., which district been (9th Cir.), ously by ascertained law.” This language suggests legislature Bradley, that a or court should geographic scope 415; determine the of the com- 531 F.2d at States Buchan half, again by zip ern by determined code. See was never sanctioned court rule and exclud- jurors. Judge Circuit Rules Cook Court 0.4. We do ed rural Hand reasoned that the intend, today, practice our decision here place years to call had been in for over ten question options into the second and third past prac- and the courts had in the treated the County approximately *8 which divide Cook though imposed by tice as a court order. Be- half. The circuit court's division of Cook Coun- tacitly cause the courts had condoned this divi- ty fully holding district, conforms with our here which Judge sion of the ruled Hand that the merely requires employees pro- that state and jury area from which the clerk drew was a spective jurors community maintain the as des- Judge lawful division. We do not find Hand's ignated by legislatively-chosen the court- and dispositive jury decision in our case because the jury selection rules once those rules been have supervisor prospective jurors and here did not established. approval act under the tacit of the Illinois court legislature. Evans, See also United States v. 701, (5th Cir.), denied, sug- 9. A case similar to ours but nevertheless 706 cert. 429 818, 62, gesting gave approval (1976) (Chief that the court tacit U.S. 97 S.Ct. pool Judge’s clerk Jury who drew the from an area clerks did not violate Selection and by failing smaller than the district came exempt qualified ju- before the fa- Service Act rors). to Judge mous Learned Kennedy, Hand in United States v. But see United States v. 548 360, 608, Gottfried, (2d Cir.), (5th Cir.1977), denied, F.2d 165 364-365 cert. F.2d 609-10 cert. 434 denied, 860, 738, 865, 199, (1977) U.S. 92 L.Ed. 1139 ju- (permitting jurors In the clerk's office drew to volunteer for second term Gottfried jury rors from three of Jury the counties within the feder- service violates Selection and Ser- argued Act). al district. The defendant that this draw vice

1011 are to be which the venires cert. Cir.1975), areas from (7th 1148, 1151 an, F.2d 529 drawn, Illinois courts have voiced 1725, 950, 48 and denied, Titus, county-wide jury selection v. approval (1976); United States 194 L.Ed.2d Fort, People v. Cir.1954); Ill.App.2d Yoho v. 133 See (2d option. 210, 212-13 (“the 241, 439, (1971) 242 Cir. Coun- 446 202 273 N.E.2d United States, 451 geographic area v. United 1953); a reasonable ty of Cook is Jeffers (N.D.Ind.1978); jurors”); People v. 1346 F.Supp. to draw from which (E.D. Brown, 281 F.Supp. 33 Free, v. 492 States Ill.2d 97 Ill.Dec. 112 Flores, Cal.App.3d v. 62 People La.1968); 871, 107 479 N.E.2d 24-26, 759 Cal.Rptr. 133 Supp. (court (1986) im 170 93 L.Ed.2d Court, Cal.App.3d Superior Adams Page county as commu defines Du plicitly (1972).10 Cal.Rptr. analysis). nity for sixth that the “convenience not believe We do Gray, cites Zicarelli v. Respondent jury supervisor by the asked questions” Cir.1976), support prop- (3d to F.2d 466 legislatively-sanc- part of a court- proper is not osition that Cook sug- in the record Nothing system. tioned analysis. community for sixth amendment or courts legislature the Illinois gests that Zicarelli, appoint- assignment judge, In to delineate jury supervisor authorized Jersey Justice of the New ed the Chief “convenience through the community with and accordance Supreme Court and Cook Illinois statute questions.” statute, designated the venue Jersey New describing County circuit rules by grand indicted a trial of a defendant authority grant do procedure selection venue, changing id. By at 468. See jury. narrow to further supervisor the defend- assignment judge moved scope from which the geographic county in which trial from the ant’s circuit and The statute is drawn.11 list county and to a second crimes occurred court designate the specifically rules court second exclusively from the drawn parties re- jury commissioners found that county. The Zicarelli process. jury selection sponsible for the prohibits Amendment courts “the Sixth Traeger, Lasecki v. People ex rel. jurors from be- obtaining petit only from (1940) (up- 359-60, 29 N.E.2d Ill. units, the large of two yond the boundaries jury selection holding delegation of authori- Id. judicial district.” federal state and the People judges); ty to commissioners at 481. Ill.Dec. Johnson, Ill.App.3d holding here that our We do not believe (1987) (delegation of 507 N.E.2d of the Third Circuit position and the county judges authority to Zicarelli In Zicarelli are inconsistent. constitutionally commissioners authority and re- acting judge, under Reed, Ill.App.3d People valid); court, for the balanced concern view the (1982) 439 N.E.2d Ill.Dec. for court and concern safety of witnesses county power of (court strictly construes to trial efficiency with computer program employee process In the crime was committed. county where presence outside juror court, does not Davis his claim before fact, commissioners). circuit court power intervene court’s question as to the give explicit instructions rules petit jurors required each month. Circuit, regard com- number The Eleventh *9 jurors petit obscenity for service munity case, in an summoned standards instructions Persons community Monday should embrace of each week found the shall be called for jury selected. is drawn and from which the period area of two weeks. for a serve and shall 826, Bagnell, 835- 679 F.2d United States v. See may judge extend the Any judge or associate Cir.1982), 1047, (11th 460 U.S. rt. jury ce time to any petit or term of (1983). 1449, L.Ed.2d 803 103 S.Ct. may require. justice, time as 0.4(b). County of Cook Circuit Rules Court County Rules of Cook The Circuit Court Ill.Rev.Stat., (effective 32.2, 9.2§ ch. ¶ also state: 1981). desig- (b) Judge jurors. Chief or Petit The certify of the to the clerk nate shall overriding jury pursu- commissioner in acted system Clancy if concerns exist jury authori challenges jury supervisor’s jury a a statute that ant to outlined selection community purposes ty detail; very to redefine little here the Illinois statute analysis without of sixth explicit as to the area from was which legislature. Un authority of the court Ill.Rev.Stat., jury Compare obtain the list. Zicarelli, judge of the ¶ like the decisions 78, 32.2, (effective 1981) ch. 9.2 and § acting jury supervisor not with 0.4(c) Circuit Rules of Cook with 28 Furthermore, the Third authority. court’s (1948)(amended 1968). U.S.C. 1864 More § pre Gray v. Circuit’s decision Zicarelli importantly, Clancy court did not ad- Supreme decision in Du ceded the Court’s dress the sixth amendment issue but mere- Missouri, v. 439 U.S. 99 S.Ct. ren ly concluded that 28 U.S.C. 1864 did not § (1979). We do not find prohibit method selection. See dispositive on the issue of commu Zicarelli Zicarelli, Clancy, 276 F.2d at 632. inAs nity. predated Supreme this case de- Court’s respon- cision in Similarly, unpersuasive we find Duren v. Missouri and therefore in preceded Supreme dent’s reliance on this court’s decision much of the Court’s de- (7th Clancy, 276 F.2d 617 velopment analysis. United States of sixth amendment Cir.1960), grounds, rev’d on other precedential We find the case of little val- (1961). L.Ed.2d 574 ue. proposi- Respondent Clancy cites agree respondent that, We with the nothing found tion that this court “has defining community when from which wrong selecting juries a method of with drawn, legis must be the court or prospective jurors living that excluded may ju lature consider convenience to the a distance from the within reasonable Johnson, People rors. See 154 Ill In a Clancy, courthouse.” defendant chal- .App.3d 107 Ill.Dec. 507 N.E.2d lenged jury process a selection in which the (1987) (“Dividing county parts into jury commissioner and his clerk sorted the drawing jury part and venires from one potential according names of to the county facility for cases at one court they place distance lived from the at which part and from another for cases at another grand petit juries to sit. The facility per deny does not se ... defendants governed by commissioner’s actions were trial.”) impartial legislature an The (1948) (amended 1968) 28 U.S.C. § court, however, must make that decision ordered, which at that time “the names prior to challenge a court such as this one. grand petit jurors publicly shall be scope To redefine the community containing drawn from box the names of legislature implicitly after the laid out qualified per- less than three hundred scope community undermines the (1948) (amended sons.” 28 U.S.C. § fair-cross-section criterion of the sixth 1968). amendment.12 distinguishable We find this case for a today We do not decide the constitution- Clancy number reasons. this court ality of a legislature’s court or decided that actions defendant failed to file a mo- creation of a grand system. tion to selection dismiss the indictment Prior challenge decisions indicate array to the within the that those bodies proper 631-32; must create period of time. See id. at selection eye policies see also Scales v. United of fairness and inclu- (4th Cir.1958) See, aff'd, 45-46 siveness. e.g., Taylor Louisiana, subsequent discussion of the Test, United States v.

process Furthermore, used is dicta. Cir.1976); State, Alvarado v. problem 12. The Court faced a similar er abused the discretion that the Alabama Commission, Jury in Carter v. preparing statute conferred on them in *10 518, (1969). S.Ct. 24 jury L.Ed.2d 549 In Carter the roll but held that the statute itself was jury Court found that the clerk and commission- not unlawful on its face.

1013 definition of communi- a narrow Likewise 1971). those Likewise (Alaska 891 P.2d policy of undermine inclusive- ty could considera into to take entitled are bodies underlying the sixth amendment. ness delin jurors when of the convenience tion Texas, 128, 130, 61 S.Ct. v. 311 U.S. Smith v. States United jury pool. eating the v. (1940); 165, Glasser 164, L.Ed. 85 84 not 33. We need Brown, 281 F.Supp. at S.Ct. 315 U.S. 62 sys jury constitutionality of decide 471, The Su- 457, 86 L.Ed. 680 County for in Cook created as it was tem the fair-cross-sec- preme Court established The defendant dispute in here. that is not criterion, to ex- tion-of-the-community not constitutionality of the questions the par- minorities, increase their but to clude principles of the application supervisor’s The system. in ticipation cir Cook by him the set down states: Court legislature. Illinois court and cuit Cf. guard jury is to of a purpose [T]he Gometz, 475, 480 730 F.2d v. United States arbitrary power— of against the exercise denied, 469 U.S. 845, Cir.1984), (7th judg- the commonsense available make (defend (1984) 155, L.Ed.2d 92 83 105 hedge community as a of the ment application of clerk’s challenges ant or mistaken against the overzealous act). jury selection federal pro- and in prosecutor preference or perhaps overconditioned fessional Amendment and Fourteenth 3. Sixth pro- judge_ This response of a biased Policy if provided not phylactic vehicle is seg- only special up of jury pool is made chal history selection of large, if distinc- populace or of the ments appli it often suggests that is lenges pool. from the groups are excluded tive gra laws of selection cation Community the adminis- participation to a fair and vest violations law, moreover, is of the criminal tration See, e.g., Castaneda jury occur. impartial our democratic only consistent 1272, Partida, v. public con- critical to heritage also Turner (1976); 1281-82, of criminal in the fairness fidence Fouche, justice system. v. Ala Norris (1970); L.Ed.2d Louisiana, 419 U.S. at Taylor v. L.Ed. bama, omitted); Teague v. (citations S.Ct. at Gometz, United States Cir.1987). (7th Lane, Cir.1984). (7th Processes serve jurors choose to prospective When influ subjectivity to human permit which they do consider homes near their often system objective, random ence an critical to of inclusiveness policy broader Regardless results. foster biased legislature A amendment. the sixth charge of persons of the good intentions however, court, analyzing sys selection, interplay with the their reflec- objective debate and system with necessarily skews the estab tem community that in- tion, may a establish body. legislative court or lished groups of diverse cross section cludes a as always have not been Those intentions reasonable living distance people within supervisor’s were as the honorable another.13 from one County jurors to permit To this case. Record Application they community which serve define the summary grant of reviewing ob undermines the on convenience based same standard apply the judgment, we system. jectivity Chicago metro used suggested the district court obscenity mand case in an 13. This court community ease due to the politan area as the com- consider the court on remand district transportation interaction between larger City munity than the of an area standards Chicago City surround significant residents diversity Chicago because Articles v. Various ing States See United community. suburbs. See United States definition Merchandise, No. Merchandise, o Seizure No. Various Articles Seizure f (N.D.Ill.1986). Cir.1984). F.Supp. re- 600 n. 4 On *11 1014 Penfold,

the district court. say, however, Richardson v. This is not to that defend- 392, (7th Cir.1988). prove ant has failed to 839 that F.2d We must blacks were 394 underrepresented on the venire. The Su- all regarding draw inferences reasonable Court, preme using census raw statistics undisputed light facts in the most favor underaged included the unqual- able to the nonmovant. Conner v. Rein ified, held that a disparity gener- 23% hard, 384, (7th Cir.), 847 F.2d 396 cert. population al number of blacks on — -, denied, 147, 109 U.S. S.Ct. 102 grand jury showed unconstitutional dis- (1988). “Summary judgment L.Ed.2d 118 against crimination blacks. See Turner v. proper only moving party is when has Fouche, 346, 349, 396 532, U.S. genuine established that there is no issue 534, (1970); see also Davis of material fact he is entitled to judg Zant, 1478, 2, 721 F.2d 1481 nn. 3 & 4 ment as a matter of law.” Roman v. Unit (11th Cir.), denied, 1143, cert. 105 Service, 382, ed States Postal 821 F.2d 385 2689, 706, S.Ct. (1983); 86 L.Ed.2d 707 Gib- (7th Cir.1987). Zant, son v. 705 F.2d 1545 2nn. & 3 (11th Cir.1983); Jones, People v. 9 Cal.3d figures Defendant submitted 1980 census 705, 707, 510 P.2d Cal.Rptr. indicating that blacks constituted 25.6% recognize We also that defend- population County. of Cook The record ant’s claim would be foreclosed if we man- indicates that forty persons none of the provide dated that he statistical evidence eligible for defendant’s were black. solely based registration on voter lists be- This court must consider whether a venire cause those lists no longer indicate racial containing no black members was fair and distinctions. The Court in Turn- reasonable relation to a community er and other recognized courts have quarter where over one population is should expected defendant not be to carry black. prohibitive in proving underrepre- burden 108; sentation. F.2d validity of defendant’s claim on rests Butera, States v. 569 n. F.2d the validity of his statistics. The census (1st Cir.1970). figures Raw census show- figures arguably are overinclusive because ing disparity large may as 25% estab- they include persons children and other ine lish underrepresented that blacks were ligible The majority service. the jury list. jury discrimination cases that found we compare voting population adult D. Systematic Exclusion See, lists e.g., drawn. Duren v. To satisfy the prong third Missouri, 361-62, 439 U.S. at 99 S.Ct. at test, Duren Davis must establish that the 667; Georgia, Whitus v. underrepresentation of blacks the venire (1967); is systematic due to exclusion of blacks in Freeman, Porter v. (5th 577 F.2d process. We find that Cir.1978); Savage v. United proof defendant’s of the third and final (3d Cir.1976), F.2d 215 n. 5 cert. de prong of the Duren test and, is not reliable nied, 51 L.Ed. therefore, reverse the grant district court’s (1977); 2d 810 Arkansas, Murrah v. 532 of the petition for writ of corpus. habeas (8th Cir.1976); United States We further find proof that defendant’s Test, Cir.1976); Unit inadequate so that he failed to survive DiTommaso, ed States v. 388 respondent’s motion for summary judg (4th Cir.1968), ment. Unit essence, prove Davis must ed States v. Armsbury, 408 F.Supp. 1130 operating in Cook (D.Or.1976). The overinclusiveness of de County caused the disparity between the fendant’s question statistic calls into percentage of blacks on the lists in a weight a court give should to this evidence suburban courthouse and percentage of unfair and representation unreasonable blacks in County. Davis submitted on the venire. deposition Covelli, of Mr. su- *12 Davis does not con Furthermore normally that he stated who pervisor, that lists are prior decision voter the subur- sider our they found whether jurors asked to also from which draw improper Davis source not an convenient. courthouses ban that States v. pool jurors. of a statistician See United affidavit supplied the drawing (7th Koliboski, the chances of Cir. that suggested one, through venire, this such as 1984). addressed com Although all-white Koliboski infinitesimal. almost act, were random selection the federal pliance with figures on provided census Finally Davis the courts that have addressed the federal and of the suburbs composition the racial registration lists constitutionality of voter ex- that would neighborhoods surrounding may constitu that a state are unanimous if not from jurors came the plain where using lists. tionally its draw voter randomly. chosen 106; Murrah, See, 532 F.2d at United e.g., (5th James, this evi- that States contests respondent denied, Cir.), prong cert. the third dence establishes (1976); ar- respondent United particular, test. Duren Cir.1973); (3d have derived Lewis, should F.2d 252 that gues defendant States voting pop- evidence his statistical Savage v. United that noted respondent also Cir.1976), ulation. The (3d n. 5 not he could testified supervisor ju- prospective if he asked remember Freeman, 514 F.2d States v. United Des Plaines whether in case rors Davis’s Cir.1975); States Gao United Furthermore, there is no convenient. (W.D.Tex. na, 1239-40 F.Supp. evidence, assuming “convenience direct Colon, 415 1978); v. Ramos States here, any mem- asked that were questions” (D.P.R.1976). The Consti F.Supp. volunteers. were venire bers Davis’s dispari amount of limited permits tution any evidence did not submit Defendant makeup of the com racial ty between on the residency of caused the venire if munity large and list. Defend registration lists. the use of voter adjust statistical evi does not that Davis’s evidence We find statistical ant’s that establish that could be credited disparity dence insufficient for the system County jury system discrepan Cook constitutionally permissible this As we case. atically excluded blacks failed evidence has cy. Davis’s statistical above, considera proper pool for noted supervisor’s “con that to establish population entire is not the tion here underrepre- questions” caused venience eligible for population County but Cook venire. on of blacks Davis’s sentation children duty. would exclude This permissible dis for the adjusting Without selec participate unqualified to those by juror qualifications crepancy caused are un If in Illinois. blacks process tion lists, not Davis use of voter because on the list derrepresented statistical evidence. presented reliable age, such as qualifications, legitimate juror respondent that agree We system County jury selection then summary granting district court erred unconstitutionally blacks. exclude does prong of regard to this third judgment with this statistical evidence Defendant’s rely on defend- test. Unable the Duren not have been selected venire could has failed statistic, find that Davis ant’s we into ac fails take a nonrandom exclusion systematic to establish that percentage of a exclusion count some ve- Davis’s caused the imbalance blacks is constitutional general population any direct provided nire. Davis has qualifications population’s if on based many jurors in his ve- as to how evidence statisti Because Davis’s service. volunteered, evi- or uncontroverted nire general census evidence is based cal questions” “convenience dence much of the not tell us figures, it how does not even case. We are asked juror from constitutional disparity comes jurors in Davis’s prospective if the is, certain evidence The statistical qualifications. side actually from the northwest came case therefore, overinclusive. Chicago pervisor’s northwest suburbs. actions caused underrepresenta- Furthermore, Davis has any not offered tion on the proof venire or systematic proof, beyond the record prior from one underrepresentation in the suburban court- case, pattern that a of exclusion existed in houses, *13 deny we must defendant’s motion the Des Plaines courthouse. Timmel v. Cf. for judgment.14 summary Phillips, (5th Cir.1986) inadequacies The found in defendant’s (“a one time example of underrepresenta- proof tangential raise the issue of tion of a whether group wholly distinctive fails to systematic meet the defendant has now exclusion respon- element the survived ”). Duren proof Without that the su- dent’s motion for summary judgment. out, points judge As the dissent the state in a had systematically been excluded. Counsel at- pre-trial hearing jurors refused to ask the how tached no written affidavits to his motion. He they were selected specify to sit in Des many Plaines. The failed to how jurors came from argues deprived dissent that this parts Davis each area city of the what Chicago and of the of opportunity systematic represented. According establish a record were planation to of to the limited ex- proof gave exclusion that and therefore the Davis’s burden of to counsel the state judge, prove should shift the three-fourths of the to State to that the members of the ve- nire could have systematically city come from Chicago did not of suggests the exclude itself, an area that suggests blacks. counsel The dissent himself that the is burden diverse. Counsel’s should now statements to the court “[ajppellee shift to the State were because vague addition, conclusory. and supplied provided plausible explanation” has he a for the no evidence of the makeup racial judge all-white of the and the state areas failed in his jurors from allegedly which the duty were to chosen. consider Davis’s claim before the trial gave Davis's judge counsel began. the his own assess- geographical ment of background the of the shows, however, The record that Davis’s coun- array members of any the analy- without factual gave judge very sel the state support little for juror sis of the cards. the claim. Davis’s counsel submitted a written It is true that Davis’s counsel also described array motion to immediately dismiss before an earlier jurors trial in which were asked if was to be selected. In his written convenient, Des Plaines was judge but the re- motion, array he that composed stated was rely fused to on comments about another trial people of who lived in northwest suburbs and proof. See Petitioner's Statement of Undis- Chicago the northwest side of and noted that Facts, puted unreasonable, App. Material B. This was not jurors there were array. no black He particularly because Davis’s then judical asked the court to take notice that counsel judge did tell the name of the array composed of people from areas of place. case or when it took County populated Cook predominantly gift Even with hindsight, we find it ¡Petitioner’s whites. See Undisput- Statement of difficult to determine the venire resulted from that likelihood Davis's Facts, ed App. Material judge A. state systematic exclusion based asked Davis’scounsel for some proof to back his provided. on the evidence canWe not fault the claim. counsel Davis's stated: judge, state proof when faced with even less and gone cards, [juror] [W]e have over the and we docket, a full refusing delay to the trial in submit comprised that the predomi- radius is question order to juror each individual on a suburbs, nantly white [n]orthwest. claim which was far from obvious. importantly, More Davis failed record Chicago, wide, County very very is a big resided, where each member of the venire even people area. It has throughout. diverse Most though the record shows that counsel was in particular of them live in a area. As I know possession juror of the containing cards such city Judge, jurors some these suburbs. information. See Petitioner’s Statement of Un- any parts selected from disputed Facts, App. Material B. Davis could city or Cook they predom- where have have proof made an offer of at the time the inantly people. black The Court can see a judge denied the motion to array. dismiss the couple Plaines, are them from Des Mt. Instead, the record contains no information re- Winnetka, Prospect, tine, Glenview, Skokie, Pala- garding the residences of the members of the Park, Wilmette, Brookfield, Schiller ... venire. why inadequate explanation Given Davis's and the rest are Chicago. jurors questioned should be separately record, his own failure to create we I’m sure Chicago. the Court Chicago knows is say cannot deprived the State Davis of split obviously into different areas. All of systematic means to establish exclusion. We these that I looked at the cards disagree [for] judge’s dissent. The state fail- were from Chicago. the northwest section of question ure individually does not Undisputed Petitioner’s Statement of Material require that we shift the proof burden of Facts, most, App. B. At Davis’s counsel offered State when adequate Davis had opportunity to conclusory statements and recited the himself, names of establish the record though even some proof northwest suburbs as that judge blacks trial question jurors. did not concludes, through majority (1979). The where appropriate is “Summary judgment analysis with which succinct, well-reasoned showing sufficient a ‘fails make party successfully Appellee has agree, that the I an element existence to establish The ma- requirements. first two case, on which met the party’s that essential ” Appel- finds, however, that proof.’ jority also burden party will bear that systematic exclusion want- Trust Fund lee’s proof Pension Local Teamsters Cir.1988) should be summary judgment ing so Angelos, I Catrett, With Appellant. Corp. entered (quoting Celotex Appellee that the L.Ed.2d I believe agree. cannot prima facie successfully made out had the burden (1986)). Defendant right to exclusion systematic his sixth case establishing that *14 up of a of blacks made underrepresentation from a venire the selected caused mandated legislatively of Cook Coun- in areas jury venires cross-section on the statistical the Since that defendant’s violated. community has been ty. believe We remaining evi- prima his facie to that not reliable failed rebut proof state has claim. his best, weakly supports interest dence, significant state showing a by case link be- the establishes I re- proof underrepresentation, that the Without justifying practic- general supervisor’s the spectfully tween dissent. case or drawn Davis’s venire the es and arguments in majority advances two underrepresenta- systematic of evidence Appellee finding the its that support of that the established tion, has not Davis underrepresentation the to show that failed system- jury selection system- due to was on his venire of blacks atically excluded blacks. First, majority states the atic exclusion. case, we this prove disposition do not Appellee’s Given statistics that the argument respondent’s they are address need because systematic exclusion beyond harmless alleged error was than voter data rather that the raw census on based Chapman v. Cal apparently position doubt. This a reasonable data. eligibility 17 L.Ed. to used show can be ifornia, that statistics assumes deficiency reverse (1967). Accordingly, we finds a 2d 705 systematic exclusion for petition of a writ grant offered court’s statistics district the kind only in for statistics, motion a corpus to Davis on stand- that I of habeas conclude Appellee. to ever, remand seldom, and we if establish summary judgment, alone, can ing summary judg Permitting person entry a district exclusion. systematic respondent. through the in favor of ment exclusion prove systematic to merges the effectively sec- use of statistics REVERSED. there was that requirement, ond Duren groups num- given the underrepresentation dissenting: Judge, FLAUM, Circuit third re- community, with in the bers jurispru- difficult presents the case This Thus, it is rele- I believe quirement. Appellee’s whether question of dential purposes of case, at least for in this vant venire right to sixth exclusion, Ap- that the systematic proving cross-section representative composed of a opposed to census data relied on pellant under violated community was eligibility data. voter commands decisional Supreme Court’s Ap- that the Second, majority finds In order of the law. area this troublesome any direct evi- produce failed to has pellee a viola- case such prima facie prove to partic- in his exclusion systematic things: dence three has to show tion, Appellee majority example, For case. ular group (1) a distinctive blacks are that nois evidence out that there points representation (2) community; that black the “conve- actually asked supervisor reasonable fair was not jury venires on the veniremembers questions” nience in the commu- to their numbers in relation actually volunteered case, anyone underrepresentation (3) nity; and courthouse, or that Plaines the Des go exclusion systematic resulted people who up of made Missouri, the venire Duren blacks. See But all these the courthouse. near resided 357, 364, 99 explored systematic had the might have been conclude that exclusion areas judge acceeded to the Defend- prong state court of Duren has been established.1 evidentiary hearing request for an ant’s sum, I Appellee think that the the cause of the all-white venire. determine prima shown a facie case of a violation of court, by the state trial I Given that denial his sixth amendment venire upon the believe it becomes incumbent up made of a cross-section of the communi- state, Appel- at least in this case where Therefore, ty. I judg- would affirm the explanation supplied plausible lee has ment of the district court. underepresentation of blacks venire, sys- to show that blacks were not

tematically excluded from the venire. the state has failed to show that the

Since

exclusion was result some neutral sys-

factor unrelated to the tem, met. that burden has not been HOUGH, Plaintiff-Appellant, Jane M. likely Nor is it that the state could suc- Cross-Appellee, underrepresentation justifying ceed in *15 purposes if there were a remand for of an Covelli, evidentiary hearing. Mr. LOCAL INTERNATIONAL BROTH- supervisor, testified that he cannot remem- ERHOOD OF ELECTRICAL WORK- whether he asked the “convenience ber ERS, Maywood Park Racetrack questions” potential veniremembers Corporation, Defendants-Appellees, Also, particular appar- case. there Cross-Appellants. ently remaining is no information on the 88-1394, Nos. 88-1515. geographic makeup of the veniremembers Appeals, United States Court Thus, actually selected. on the law as Seventh Circuit. by Supreme mandated Court and the here, produced facts where trial court Argued Nov. 1988. provide evidentiary hearing refused to Decided Feb. Appellant why to discover the reason up whites made his venire and where no neutral reason was advanced the state venire,

to account for this I am forced to majority Appellee lenges only also states proved by could be evidence that systematic failed to show exclusion since “Davis peremptory challenges were used to strike a any proof, beyond has not offered the record particular group According in "case after case." case, prior pattern from one that a of exclusion Batson, evidentiary require- to the Court existed in the Des Plaines courthouse.” Other courts have also held that in order to ment of Swain created an insurmountable bur- prove Thus, rejected den for defendants. the Court exclusion, systematic evidence must be adduced evidentiary requirement Swain's and held in- just from more than the case at bar. See Tim stead prima that a defendant could make out a Phillips, mel v. 1086-87 equal protection "by facie case of an violation Cir.1986) ("One being incidence of a venire relying solely concerning on the facts the [ve- disproportionate ‘system- is not evidence of a nire] selection in his case." 106 S.Ct. at 1722 exclusion.”); Wyrick, atic’ Euell v. (emphasis original). (8th Cir.1983) ("[wje inquiry could end our Although equal protection Batson involved an systematic by stating [as that Euell exclusion] claim, reasoning I believe that its would also prove general underrepresenta- has failed to extend to a case under the sixth amendment. Still, women”). following tion of I believe that In equal protection both sixth amendment and Kentucky, Batson v. cases, highly suspicious the Court has (1986), been systematic exclusion can significant group underrepresenta- instances of single be shown based on the evidence from a tion subject case. "where the selection mechanism is case, Batson, abuse." Id. In this the method rejected Court its ear- selecting subject pronouncement, veniremembers was lier bama, made to abuse in Swain v. Ala- and, therefore, successfully Defendant can (1965), equal protection "systematic that an show violation based exclusion” of blacks based prosecutor’s peremptory on a solely use of his chal- on evidence from his own case.