Davis v. Warden, Joliet Correctional Inst. at Stateville

Decision Date09 May 1989
Docket NumberNo. 88-1590,88-1590
PartiesHursey DAVIS, Petitioner-Appellee, v. WARDEN, JOLIET CORRECTIONAL INSTITUTION AT STATEVILLE; Michael Lane, Director, Department of Corrections, State of Illinois, Respondents-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

William P. Postorius, Ill., Atty. Gen. Office, Chicago, Ill. for respondents-appellants.

Peter J. Schmiedel, People's Law Foce., Chicago, Ill., for petitioner-appellee.

Before BAUER, Chief Judge, WOOD, Jr., and FLAUM, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

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


On October 27, 1981, Hursey Davis appeared in the Cook County circuit court located in Des Plaines, Illinois, a northern suburb of Chicago. The State charged Davis with attempted murder and auto theft in connection with the February 13, 1981 shooting of a white Des Plaines police officer.

Prior to trial, Davis's counsel discovered that every person on the jury list was white. The day of trial, Davis's counsel requested that the court question the forty prospective jurors as to how they were selected to serve in the Des Plaines courthouse, or in the alternative, dismiss them. Defense counsel argued that the jurors were not randomly selected. According to defense counsel, the array was composed of people who lived in predominantly white northwest suburbs of Cook County and the predominantly white northwest side of the City of Chicago. 1 He described another Des Plaines criminal trial in which the jurors had been asked if the Des Plaines courthouse was "convenient" for them. The trial court, after listening to Davis's counsel, denied the motion challenging the array and refused to question the prospective jurors concerning the jury selection process. The trial court stated that he found "outrageous" defense counsel's allegation that blacks were excluded from the jury list.

The jury convicted Davis. The trial court denied Davis's motion for a new trial and sentenced him to concurrent terms of fifty years for attempted murder and five years for theft. Davis then appealed, challenging the constitutionality of the jury selection system.

The Appellate Court of Illinois reduced Davis's sentence from fifty to thirty years but rejected Davis's claim that the trial court unconstitutionally deprived him of a jury drawn from a representative cross section of the community. The appellate court found, in rejecting defendant's claim, that the trial court's failure to question jurors did not constitute "reversible error." See People v. Davis, 121 Ill.App.3d 916, 77 Ill.Dec. 415, 418, 460 N.E.2d 471, 474 (1984).

After the Illinois Supreme Court denied further review, Davis petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, alleging that the Cook County jury selection system violated his sixth and fourteenth amendment right to trial by a fair and impartial jury.

During discovery granted by the district court, defense counsel deposed Mr. Daniel A. Covelli, Jr., the county jury supervisor in 1981. The county jury supervisor, along with his other duties, assigned persons summoned for jury duty to courtrooms in various parts of Cook County. Covelli did not recall the exact procedure used in Davis's case but outlined the steps he would commonly take: Approximately 750 to 1000 potential jurors reported to the Daley Center in Chicago every Monday for jury duty. 2 At the Daley Center, members of the jury supervisor's staff called at random approximately twice the number of names needed, using a bingo-type machine called a peapot. Covelli's staff then took the prospective jurors to a courtroom where Covelli thanked them for coming and asked those persons living in or near the suburbs to volunteer for jury duty at suburban courthouses. According to his testimony, Covelli said something like, "Be kind to your fellow jurors. It's a large county. If you live close to that area, it would be easier on other jurors." If the suburban court needed more jurors than would volunteer, Covelli's staff picked the rest randomly. Covelli ceased using this system around 1983.

Both sides moved for summary judgment on the petition for writ of habeas corpus. In support of the motion, Davis's counsel submitted the affidavit of statistician Steven Whitman. Whitman, in his review of the composition of the venire in Davis's case, stated that the probability of selecting forty white jurors at random from the entire population of Cook County was seven chances in one million. He added, "the selection of this group of forty white people from the population of Cook County, Illinois, is totally inconsistent with a random, racially neutral selection process."

The district court granted Davis's petition for writ of habeas corpus on summary judgment and remanded the case to the state court for a new trial. The district court held that Davis established a prima facie case of systematic exclusion of blacks from the venire, which the respondent failed to adequately refute. The district court then denied the respondent's motion to alter or amend the judgment and the respondent appealed.

A. Supreme Court Precedent

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1967), the Supreme Court extended the sixth amendment right to an impartial jury to defendants in state proceedings. Defining the elements of the sixth amendment that extend to the states, the Supreme Court has held "the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975); see also Teague v. Lane, 820 F.2d 832, 837 (7th Cir.1987), cert. granted, --- U.S. ----, 108 S.Ct. 1106, 99 L.Ed.2d 268 (1988). The fair-cross-section inquiry has three components:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). Once the defendant has made a prima facie showing as to these elements, the burden shifts to the state to show that it has an overriding, significant state interest. Id. at 367, 99 S.Ct. at 670.

B. Distinctive Group in the Community

The parties do not dispute that defendant has satisfied the first prong of the Duren test. Under Duren, the group excluded from the venire must be distinctive in the community. All agree that blacks are a distinctive group in the community. See Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880).

C. Fair and Reasonable Representation of Community

The second prong of the Duren test presents greater difficulties. Under this second prong, defendant must prove that the representation of blacks on the jury list is not fair and reasonable in relation to the number of blacks in the community. This element of the Duren test hinges upon the disputed geographic scope of the community from which the state must draw the venire under the sixth and fourteenth amendments. If the Constitution permits this court to define community as a lesser area than Cook County, the court must examine the issue of fairness and reasonableness with that smaller community in mind. From our analysis of the history of the sixth amendment and court precedent, we find that the district court did not err in evaluating the fairness and reasonableness of Davis's venire in relation to the racial makeup of Cook County.

1. Legislative History

The district court found that the early Congress intended the venire to be drawn from an area larger than what we generally consider to be a community. 3 According to the district court, Congress rejected James Madison's attempt to incorporate the term "vicinage" in the sixth amendment and instead adopted the term "district" to define the area from which the jury was to be drawn. The district court stated, "The Sixth Amendment was never intended to provide a defendant with a trial in his backyard, nor with a jury comprised of the families or neighbors of his victim."

The right to a jury trial in the state or district arose from the concept of vicinage but that concept came to mean different things depending on the time, place, and people affected. The term "vicinage," in early times, literally meant "neighborhood" or "county." See Williams v. Florida, 399 U.S. 78, 93 n. 35, 90 S.Ct. 1893, 1902 n. 35, 26 L.Ed.2d 446 (1970); Connor, The Constitutional Right to a Trial by a Jury of the Vicinage, 57 U.Pa.L.Rev. 197, 198-99 (1909). In England, the phrase "a jury drawn from the vicinage" meant that jurors were drawn from the immediate locality. Jurors, at that time, were expected to use their independent knowledge of the facts to decide the case. The American colonists, on the other hand, argued that the concept of vicinage prohibited England...

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