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December 18, 1990

KENNETH McGINNIS, Director of the Illinois Department of Corrections, Respondent

The opinion of the court was delivered by: ASPEN


 On May 4, 1980, Daniel Holland abducted a suburban female teenager and, at knifepoint, sexually assaulted her. A Cook County, Illinois circuit court jury subsequently found him guilty of rape, deviate sexual assault, aggravated kidnapping, and armed robbery. Holland now seeks habeas relief under 28 U.S.C. ยง 2254 (1988), challenging the state's use of peremptory challenges at trial and, additionally, alleging both physical and mental coercion in violation of the Fifth Amendment. For the reasons set forth below, we grant his petition.

 I. Factual and Procedural Background

 The facts underlying Holland's conviction can be briefly set forth:

On May 4, 1980, at approximately midnight, the complainant and her boyfriend left a party, riding in her boyfriend's car. The complainant drove. The car suddenly had a flat tire and the complainant pulled the car over to the shoulder of the road. They discovered that the spare tire was also flat. After waiting an hour for assistance, the couple decided to sleep in the car. They awakened at dawn and began to walk on the shoulder of the road. Shortly afterward, defendant [Holland] pulled up in his car, asked what was wrong, and offered to give the complainant and her boyfriend a ride home. Accepting the invitation, the couple got in defendant's car. The complainant sat in the front seat and her boyfriend sat in the back seat.
After driving for a while, defendant pulled off the road and stopped the car, he grabbed the complainant, brandished a knife against her throat, ordered the boyfriend to get out of the car, and threatened to kill them if the boyfriend did not do so. The complainant's boyfriend got out of the car. The complainant pleaded with the defendant to release her. The defendant said he would let her go when he was through with her. He pulled her nearer to him and continued driving while holding the knife under the complainant's arm. Defendant then pulled his car into a parking lot. The complainant was ordered to take off her clothes or get "cut up." As the complainant disrobed, the defendant cut her brassiere and forced her to perform an act of oral copulation.
During this ordeal, defendant complained that the complainant was not sexually performing the way he wanted and he cut the complainant's upper thigh with his knife. The complainant testified that the defendant threatened to kill her if she did not do what he wanted. They got back in the car.
The defendant continued driving. The defendant then pulled into an alley where he and the complainant again got out of the car. The defendant forced the complainant to have intercourse with him twice and to perform oral copulation on him. The complainant testified that she did not attempt to leave nor did she cry out for help because she was only partially clothed. The defendant took the complainant's money (approximately $ 60), driver's license and school identification card and threatened to kill her if she reported the incident to the police. The defendant then allowed the complainant to get dressed outside the car and leave. The complainant testified that as she walked away she turned and noticed that the defendant's car did not have a rear license plate. The complainant ran to a grocery store where she used the washroom and called home. Her brother came to pick her up and immediately drove her to a police station. After reporting the incident to the police, the complainant was taken to a hospital. From the hospital, the complainant was driven to the places she had been taken by the defendant and then went back to the police station where she identified the defendant's picture from a group of photographs.
During the time the complainant was with the defendant, the complainant's boyfriend called the police. The police radioed a description of the defendant and the type of car he was driving. Defendant was arrested at about 8:15 a.m. when he was stopped by the police for driving without a rear license plate. The defendant did not have a valid driver's license. He was taken to the Schiller Park police station where a hunting knife, the complainant's high school identification card and $ 58.80 were taken from him.

 People v. Holland, 147 Ill. App. 3d 323, 324-26, 497 N.E.2d 1230, 1232-33, 100 Ill. Dec. 868 (1st Dist. 1986).

 The Illinois Appellate Court reversed Holland's conviction. It found, among other things, that: (1) failure of the police to notify Holland that his attorney had attempted to reach him invalidated Holland's purported waiver of the right to counsel ( id. at 336, 497 N.E.2d at 1239-40); and (2) an interrogating officer's knowing false statement to Holland that Chicago police had seen his car "in the alley involved in the rape incident," and that while Holland could not be identified, "he would have to explain why the vehicle was there" rendered Holland's confession involuntary and thus inadmissible ( id. at 340, 497 N.E.2d at 1242).

 Holland, a white man, also argued that the state's improper use of its peremptory challenges at trial had violated his "constitutional right to a jury drawn from a fair cross-section of the community." Id. at 326-27, 497 N.E.2d at 1233. The prosecution used two of its ten peremptories to excuse the only two black venirepersons of a venire of forty. Id. at 326, 497 N.E.2d at 1233. The appellate judge noted that the Supreme Court had recently decided a case, Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), involving the constitutional propriety of peremptory challenges used to systematically exclude jurors on the basis of race. Id. at 327, 497 N.E.2d at 1233. In Batson, the Court held that such a practice violates the Fourteenth Amendment's equal protection guarantees. Batson, 476 U.S. at 90, 106 S. Ct. at 1719. *fn1"

 The appellate court found it unnecessary to adjudicate Holland's Batson argument because: (1) it overturned Holland's conviction and remanded the case for a new trial on other grounds; (2) Batson was handed down by the Supreme Court during the pendency of Holland's appeal, meaning that "the parties and trial judge in the instant case did not have the benefit of the . . . decision when the alleged peremptory challenge improprieties occurred"; and (3) "with Batson now controlling, it is highly unlikely that this issue will recur on retrial." People v. Holland, 147 Ill. App. 3d at 327, 497 N.E.2d at 1233.

 The state, however, appealed the decision to the Illinois Supreme Court, which reversed and affirmed Holland's conviction. People v. Holland, 121 Ill. 2d 136, 163-64, 520 N.E.2d 270, 282, 117 Ill. Dec. 109 (1987). The state supreme court determined that Holland's waiver of the right to counsel was valid "despite the fact that he was not told that an attorney wanted to confer with him prior to any interrogation or lineup." Id. at 153, 520 N.E.2d at 277-78. Additionally, the court found that the interrogating officer's false statement to Holland would not invalidate Holland's confession because "there is no indication that the defendant lacked the capacity to understand his rights," the officer questioned Holland only briefly, and the statement did not threaten Holland "or imply that either the defendant or a loved one would be harmed in some way if the defendant asserted his right to remain silent rather than explain the presence of his automobile in the alley." Id. at 155, 520 N.E.2d at 278.

 The state supreme court did not consider the equal protection ramifications of Holland's peremptory challenge argument. It found that "the defendant, a Caucasian, does not have standing to assert a Batson violation." Id. at 157, 520 N.E.2d at 279. Under Batson, the court said,

the defendant challenging the exclusion of prospective jurors because of their race must show "that members of his race have been impermissibly excluded." (Emphasis added.) (476 U.S. 79, 93, 106 S. Ct. 1712, 1721, 90 L. Ed. 2d 69, 85-86.) Since defendant is white and the excluded prospective jurors are black, he is unable to show that members of his race have been excluded impermissibly. Thus, he is unable to establish the threshold element of a prima facie Batson violation.

 Id. But see id. at 173, 520 N.E.2d at 286-87 (Simon, J., dissenting) ("because all prospective black jurors were kept from service on the jury through the State's use of peremptory challenges, defendant is entitled at the very least to a hearing on whether those jurors were unconstitutionally excluded from the jury which convicted him in violation of Batson "). The court also rejected Holland's argument that the state violated his right to a jury representing a fair cross-section of the community when it excused the two black venirepersons. Id. at 158, 520 N.E.2d at 279-80 (majority opinion).

 The United States Supreme Court granted certiorari to consider Holland's Sixth Amendment "fair cross-section" claim. Holland v. Illinois, 489 U.S. 1051, 109 S. Ct. 1309, 103 L. Ed. 2d 579 (1989). Indeed, in his brief before the Supreme Court, Holland presented only the "narrow question" of whether state conduct violative of the equal protection clause (as in Batson) also violates Sixth Amendment protections. Brief for Petitioner at 6, Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905 (1990) (emphasis added). Holland conceded that Batson "applies only in cases where the defendant himself is a member of the cognizable group excluded from the petit jury," but argued that a "similar rule predicated on the Sixth Amendment would apply in all cases, irrespective of the race of the defendant and would, therefore, apply to petitioner, who is white." Id.2

 The Supreme Court ruled that Holland had standing to bring a Sixth Amendment claim, since, unlike an equal protection claim, such an argument has never been predicated on a "correlation between the group identification of the defendant and the group identification of excluded venire members . . . ." Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 805, 107 L. Ed. 2d 905 (1990). That is, every defendant is entitled to a venire representing a fair cross-section of the community, "whether or not the systematically excluded groups are groups to which he himself belongs." Id.

 The Court declined, however, to extend the "fair cross-section" requirement from the venire to the petit jury. It rejected Holland's contention "that a prosecutor's use of peremptory challenges to eliminate a distinctive group in the community deprives the defendant of a Sixth Amendment right to the 'fair possibility' of a representative jury." Id. 110 S. Ct. at 806. While noting that the venire fair cross-section notion had solid roots in the Sixth Amendment, "traditional understanding" of the amendment itself and how an impartial jury is impaneled does not include -- nor has it ever included -- "the notion that, in the process of drawing the jury, that initial representativeness cannot be diminished by allowing both the accused and the State to eliminate persons thought to be inclined against their interests -- which is precisely how the traditional peremptory-challenge system operates." Id. at 807.

 Justice Kennedy filed a short concurrence. He stated the "established rule" from Batson -- "exclusion of a juror on the basis of race, whether or not by use of a peremptory challenge, is a violation of the juror's constitutional rights" -- and emphasized that if Holland's claim had been "based on the Fourteenth Amendment Equal Protection Clause, it would have merit." Id. (Kennedy, J., concurring). Justice Marshall's dissent, joined by Justices Brennan and Blackmun, made the same point in somewhat more expansive fashion:

Nowhere [in Batson ] did the Court state . . . that a white defendant could not make out a prima facie case based upon the exclusion of Afro-American jurors, and the logic of the Court's decision would not have supported such a conclusion.
. . . More fundamentally, [petitioner] Batson was permitted to raise not only his rights, but also those of the members of the venire and of the general public. If Batson could do so, there is no reason a white defendant cannot do so as well.
In any event, the question whether a defendant's race affects his standing to invoke Batson is one on which the Court has not ruled. For the reader who seeks guidance on how the Court would rule if the issue were presented and argued, the agreement of five Justices that a defendant's race is irrelevant to the Fourteenth Amendment standing inquiry is ...

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