US ex rel. Yates v. Hardiman, 84 C 10295.

• Citation: 656 F. Supp. 1006
• Decision Date: 20 March 1987
• Docket Number: No. 84 C 10295.,84 C 10295.
• Parties: UNITED STATES of America, ex rel. Lonnie YATES, Petitioner, v. Phillip T. HARDIMAN, Executive Director of the Cook County Department of Corrections, Richard Elrod, Sheriff of Cook County, and Michael Lane, Director, Department of Corrections, State of Illinois, Respondents.
• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

656 F. Supp. 1006

UNITED STATES of America, ex rel. Lonnie YATES, Petitioner, v. Phillip T. HARDIMAN, Executive Director of the Cook County Department of Corrections, Richard Elrod, Sheriff of Cook County, and Michael Lane, Director, Department of Corrections, State of Illinois, Respondents.

No. 84 C 10295.

United States District Court, N.D. Illinois, E.D.

March 20, 1987.

COPYRIGHT MATERIAL OMITTED

James J. Doherty, Public Defender of Cook County, Chicago, Ill., for petitioner; Marc Fogelberg, Robert P. Isaacson, Asst. Public Defenders, of counsel.

Scott Graham, Asst. Atty. Gen., Neil F. Hartigan, Atty. Gen. of State of Ill., Chicago, Ill., for respondents.

MEMORANDUM

GEORGE N. LEIGHTON, Senior District Judge.

On the morning of July 11, 1977, in the City of Chicago, the apartment in which seventeen-year-old Veronica Lee lived, was burglarized. Lee, apparently unbeknownst to the burglar, was in the apartment; when discovered, she was stabbed to death. Petitioner, Lonnie Yates, an American Negro, was indicted for the murder and burglary. Following a February 1979 trial, a jury returned guilty verdicts on both offenses. Yates was sentenced to death for the murder and fourteen years' imprisonment for the burglary. He appealed both convictions and the sentence on the murder charge. A divided Illinois Supreme Court, a 4-3 decision, affirmed the convictions. However, because of prosecutorial misconduct, the court unanimously vacated the death sentence and remanded the cause for a new sentencing hearing on the murder charge. People v. Yates, 98 Ill. 2d 502, 75 Ill.Dec. 188, 456 N.E.2d 1369 (1983). On May 14, 1984, Yates's petition for certiorari was denied. Yates v. Illinois, 466 U.S. 981, 104 S.Ct. 2364, 80 L.Ed.2d 836 (1984), reh'g denied, 467 U.S. 1268, 104 S.Ct. 3563, 82 L.Ed.2d 864 (1984).

I

Having exhausted his available state remedies, Yates filed a petition in this court seeking habeas corpus relief under 28 U.S.C § 2254. He alleged that in his state court trial, he was: (1) denied his Sixth and Fourteenth Amendment rights to be tried by a jury composed of a representative cross section of the community, because the prosecutor exercised peremptory challenges to exclude members of his race from the jury; (2) denied his Sixth and Fourteenth Amendment rights to present a defense, because the trial judge excluded certain evidence; and (3) denied his Fourteenth Amendment due process rights, because the prosecutor made the inflammatory and unsupported argument that Yates had sexually attacked Lee.¹

Both Yates and respondents have moved for summary judgment on the peremptory challenge issue. Because the trial court made no specific findings on the operative facts underlying the claim, this court initially denied both motions and ordered an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 314, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); see also 28 U.S.C. § 2254(d)(1). On December 12, 1986, the cause was heard. Petitioner submitted the affidavit of the state court judge who presided over Yate's trial. The judge avers that he denied Yate's motions for mistrial on the basis of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Petitioner also directed the court's attention to certain portions of the state court record. Respondents offered no evidence. The record of the state court proceedings reveals the following facts relevant to Yates's peremptory challenge claim.

II

During voir dire examination of prospective jurors, the prosecutor exercised thirteen of sixteen peremptory challenges to excuse Negroes; one Negro sat on the jury. The characteristics of the Negroes excluded were similar to those of non-Negroes who sat on the jury. The Negroes excluded were:

1. Gwendolyn Walker, a homemaker and mother of four. R. 1274-5. Her husband was employed as a quality engineer for American Can Company. R. 1275. One of their daughters had worked as a nurse. R. 1276. One son was working for American Can, and another for the Railroad Retirement Board. R. 1277-78. Their fourth child, a son, was a high school student. R. 1278. No member of Mrs. Walder's family had ever been charged with a crime. R. 1279.

2. John H. Collins, a Chicagoan who had worked for thirty years as a lift truck operator for Hi City Transportation. He and his wife owned their home. R. 1384. They have four children. One daughter was working at Illinois Research Company in the Insurance Department Office and another was employed by Mercury Records. R. 1384-86. One son was working as a supervisor for an electronics company in Rolling Meadows. R. 1385. Their other son had been working for Sunbeam Corporation, before being laid off. R. 1386.

3. Cleo Sykes, a nurse's aide, was employed at the University of Chicago Clinic. R. 1398.

4. Timpie Henderson, a high school special education teacher with a master's degree, was employed by the Chicago Board of Education. R. 1402. Her husband was employed as a machine operator by Sun & Shine Company. R. 1402. Their only child was then a journalism major at Northwestern University. R. 1402-03. Mrs. Henderson was once the victim of a burglary. R. 1406.

5. Joseph Clay, a Chicago Transportation Authority ticket agent; he had held that position for over fourteen years. Mr. Clay and his wife owned their home. R. 1447.

6. Derek Southern, a graduate of Parker High School in Chicago. Mr. Southern was unemployed and lived with his parents. R. 1458-60. No one in his family had ever been charged with a crime. R. 12461-12.

7. Mrs. Jessie Sherrod, a retired social worker who had worked for the Chicago Department of Public Welfare for thirty-three years. R. 1501. Her only child was employed as a corporate attorney for Sears Roebuck and Co. R. 1502. Mrs. Sherrod's husband was teaching at the University of Illinois. R. 1503. She had once been held at gunpoint; regarding that incident she stated that the police "were very sympathetic and understanding and worked with me a long time." R. 1506.

8. Edward Lambert, an automotive repairman. He had been employed by the Ford Motor Company for twenty-nine years. He and his wife owned their home. R. 1507. His wife was working as a laboratory technician for the American Red Cross. His next door neighbor and his wife's nephew were both policemen. R. 1508. No one in his family had ever been charged with a crime. R. 1508-09.

9. Iona Husband, a widow, was employed as a machine operator for Stuart Warner; she had held that position for thirty-four years. R. 1510. One of her sons was working as a mailman and her daughter as a practical nurse. R. 1511. She knew some policemen and her sons were friends with guards at the Cook County Jail; she knew "quite a few of them." R. 1512.

10. Mary Randle, a homemaker who was living with her husband and children on Chicago's far south side. R. 1524. Her husband was employed as an automobile mechanic and her eight children worked at various jobs. R. 1525-26. She had been the victim of a burglary. R. 1527. Mrs. Randle had a seventh grade education and had some difficulty reading. R. 1530. The prosecutor moved to excuse her for cause based on two grounds: her vision and her inability to communicate. R. 1535. The trial judge denied the motion. R. 1536 11. Lurade Davis, a retired Chicago Park District employee. R. 1608-09. His wife, a licensed practical nurse, was working part-time at the LaRabida Children's Hospital. R. 1608. The Davises owned their home and had two sons. R. 1609. No one in their family had ever been charged with a crime. R. 1611.

12. Robert Christmon, a truck driver for the Chicago Transportation Authority. He had worked there for over nineteen years. R. 1617. His son was once robbed and beaten. R. 1619.

13. Naomy Ollison, a cashier at Thermond Variety Stores. She was living with her four children. R. 1657. She was separated from her husband. R. 1659.

The only characteristic these people had in common was their race. Based on these facts, Yates urges that he was denied his Sixth and Fourteenth Amendment rights to a jury composed of a representative cross section of the community.

In response to the state's use of its peremptory challenges, Yates's counsel twice moved for a mistrial based on the systematic exclusion of Negroes from the jury. In his first motion he stated,

The black that was accepted ... indicated among other things he had affiliations with police officers. Every other black prospective juror in the venire has been systematically excluded.... I don't think the array left fairly and adequately represents a peer group of Mr. Yates and he has a right to be tried by a jury of his peers.... I would ask that a new venire that does fairly and adequately represent the community be brought in. R. 1637-38.

To this, the prosecutor replied,

I would like to reply to that as being absolute nonsense.... We believe that this is far from being an unrepresentative group. It is most representative as it stands right now but that is not the point. There is nothing that calls on me to defend peremptory challenges. I think the record speaks for itself, the cards speak for themselves and what we are looking for is a fair and impartial jury and there is no intent to deal with what the defense claims that we are trying to. R. 1638-39.

The trial judge denied petitioner's motion for a mistrial, stating only that "defendant's motion for a mistrial is denied." R. 1639. Later, Yates's counsel again moved for a mistrial "based on the systematic exclusion of blacks" and because the prosecutor exercised thirteen of sixteen peremptory challenges to exclude Negroes from the jury. The second motion was denied. R. 1690.

III

A. Fourteenth Amendment Claim

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the United States Supreme Court recognized that the purposeful exclusion of Negroes from a jury, because of race, violated the Equal Protection Clause of the Fourteenth Amendment. Swain, 380 U.S. at 203-04, 85 S.Ct....