It's not hard to lose track of someone who's been sent to prison for 30 years. But we're back in touch with Frank Teague. Any week now, the highest court in the land will rule, and if things go his way Frank Teague will be back on the streets for the first time since 1977. For the second time in his life he will have litigated his way out from behind bars.
We rediscovered Teague a couple of months ago in a New York Times Magazine article titled "Determined to Be Heard: Four Americans and their journeys to the Supreme Court."
"They are the powerful and the powerless, the popular and the scorned. A guild of stubborn optimists who test the limits of the system for the rest of us," wrote William Glaberson. Another description for Teague, the only one of the four petitioners in custody, would be "obsessed." Glaberson wrote, "In more than six years of work on his appeals, there has hardly been a week that he hasn't called [his attorney] from one correctional institution or another. He'll want an update on his case. Or he'll want to talk about a precedent he has discovered in the prison law library."
That's the Teague we remember. We met early in 1976, when he was fighting a 1969 conviction, and 25-year sentence, for the robbery of a savings and loan. He'd almost licked it. "They framed me," explained Teague when we called on him at the Metropolitan Correctional Center on South Clark Street. The witness who'd done Teague the most damage was a chronic crook who'd actually been arrested himself the night before he testified against Teague. He was doing time for forgery when he recanted. This witness claimed that he'd damned Teague in return for easy treatment. At Teague's trial, he'd denied making a deal with the prosecution; he'd even denied that he was facing federal charges. He'd lied, and the prosecutors knew he'd lied.
A few days later, Teague was cut loose. We met him outside the MCC and bought him a beer. He was too jumpy to finish it. Marriage, college, real life--suddenly it all loomed ahead, close enough to taste. He borrowed a few dollars and charged into the night. Eleven months later he held up an A&P in Forest Park and shot it out with two policemen waiting outside to nab him. One officer was wounded in the leg.
Ten months after that, free on bond, Teague walked into a Del Farm market in Peoria, gun in hand. The police chase reached speeds close to 100 miles an hour. Teague claimed temporary insanity, but the jury in Peoria County didn't buy it, and he was hit with 12 years in prison (later reduced to 10). Then he was shipped north to face the robbery, battery, and attempted-murder charges for the A&P stickup waiting for him here in Cook County.
Again, the defense was temporary insanity. Grinding personal pressures--college, a marriage that was falling apart--drove him into a "robotic" state in which he committed desperate acts that afterward he could not even remember. But we'd interviewed Teague for the Sun-Times a day or two after his arrest outside the A&P; and a sharp state's attorney dug up the story and decided that it debunked Teague's claim of a nonfunctioning memory. We were put on the stand at Teague's trial to defend our article.
We were sworn in. Then Teague flung himself from the defense table, a white hood suddenly covering his face, and ran screaming toward the jury. "Ku Klux Klan!" he screamed. "There ain't no justice, man, they are lying on me! You call this justice? They kick all the blacks off the jury! I am telling the truth! They said I should paint myself white!"
The bailiffs dragged him out, and the judge cleared the courtroom. When the trial resumed, Teague, now handcuffed to his chair, maneuvered a second hood over his face. This was enough for the judge. When we finally testified, Teague's chair was empty.
The jury found Teague guilty on every count. The judge gave him 30 years. But before he was shipped to Stateville, Teague asked us to visit him at the Cook County Jail. He opened a briefcase and out came a third white hood! Given the chance, he'd have pulled his Ku Klux Klan routine yet again.
Then he pulled out his motion for a new trial and enthusiastically explained its 23 points. His mind was alive with possibilities. Mike, he said--it was mid-October 1979--if this works out, I'll be home for Christmas!
He'd seen the flaw in the prosecution the moment his trial began. It was an all-white jury. There'd been 11 blacks in the juror pool and the prosecution had used every one of its peremptory challenges to excuse 10 of them (the eleventh was dismissed by the defense). When Teague's lawyer protested, the prosecution said it was after a balance of sexes and age groups.
Our last word with Teague was a letter from Stateville. He enclosed a photocopy of an article he'd dug up in the prison library analyzing a recent judicial decision somewhere. In strong strokes made by a red magic marker he'd written: "Mike please be sure and read completely . . . my key back to the world!!!"
The decision assailed the use of peremptory challenges to affect the racial makeup of a jury.
Teague wasn't out for Christmas. Not in 1979 or 1980 or '81 or '82. His appeal went nowhere. But in April 1986, the Supreme Court spoke. It wiped its old rule on peremptory challenges off the books. The Court's previous position had been that, sure, the 14th Amendment guarantee of "equal protection of the laws" was violated if the prosecution systematically used its challenges to keep members of the defendant's race off the jury. But to prove a racial motive was next to impossible: the defendant actually had to establish a pattern extending over several trials (meaning that the first time or two a prosecutor stacked a jury racially he was bound to get away with it). Now the burden of proof shifted; from now on, if a black defendant, say, faced an all-white jury, the prosecution would have to show he was looking at a coincidence.
That was the good news. The bad news was that the Court's new rule wasn't being applied retroactively to convicts like Teague who had exhausted direct appeal.
That didn't stop Teague or his attorney, Patricia Unsinn of the state appellate defender's office. They're asking the Court to extend retroactivity, but all their hopes aren't tied to the 14th Amendment. The heart of their argument is even more basic; it lies with the Bill of Rights, with the Sixth Amendment guarantee of a "speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed."
What that means, the Supreme Court decided in 1975, is that a defendant has a right to a jury drawn from a jury panel that's a "fair cross section" of the community. Where's my cross section? Teague has been asking since 1979. A Cook County jury with no blacks?
Last March, the Supreme Court finally decided that Teague's question deserved an answer. In its ramifications, the question is far from simple. Teague and Unsinn's Supreme Court brief cites abuses still possible under the new 14th Amendment rule--such as prosecutors eliminating blacks from a jury trying a white civil rights activist, or women (who are supposed to be vulnerable to emotional appeals) from the jury trying a man. These could be ended under the Sixth, says the brief. On the other side, Assistant Attorney General David Bindi of Illinois argues that if either the prosecution or the defense is prevented from excusing the other side's obvious partisans, the result won't be a more impartial jury; it'll be one that's less.
The Court heard oral arguments on Teague's case last October 4. If Teague prevails, and the state of Illinois does not hold him to retry him, Teague will be a free man.
Perhaps you find yourself sputtering. Teague robbed the supermarkets, did he not? He shot the cop, did he not? For all anyone knows, he even held up the savings and loan, did he not? Yet he claims he got a rotten deal!
Well, he did. But his actions are not the issue. His original defense (was he or wasn't he in a "robotic" state?) is not the issue. The systematic disqualification of black jurors--not even that is the issue.
Because that issue's already settled: it's wrong, says the Supreme Court. The primary issue is whether it's wrong under the 6th Amendment as well as the 14th. The secondary issue is how many old wrongs to right. "there are cases all over the country waiting on my decision on full retroactivity," Teague told us by phone from the Dixon Correctional Center. "In Illinois alone there must be 30 or 40 guys I've known over the years fighting this issue. There are a couple of dozen right here."
If you want to get mad, get mad at the prosecutors in Teague's life who kept stacking the deck to get him put away.
Law students across the country are watching to see what happens to Frank Teague. The issue in this winter's national moot court competition is gender discrimination in jury selection. Many of the same 6th and 14th amendment arguments apply. Patricia Unsinn has prepped the Northwestern team. David Bindi told us, "We are being flooded by calls by law schools."
A fresh Supreme Court ruling on jury selection at this stage could turn the moot competition upside down. No doubt the National Moot Court Society hopes the Court will keep silent until the finals are over in January. Teague would be glad to hear from the Court a little sooner.
The New York Times article portrays a Teague who's a far cry from the irrepressible jailbird we remember from the 70s. "As I told my mother a few weeks ago," Teague told William Glaberson about his appeal, "if it helps others, fine. But let me first consider myself. Let me get this yoke off my back."
Glaberson pointed out that Teague, 42 years old, has been a prisoner all but nine months of the last 20 years of his life. "There's got to be some life before I die," Teague told him. "That's one of my prayers before I go to sleep every night. Don't let me die in this hellhole."
"I've received several injuries," Teague told us. "I have a herniated disc and now I'm on a four-wheel walker. I don't want it cut into here. I want to wait until I get out."
We reminded Teague that the last time we saw him, he was hoping to be home by Christmas.
"Maybe Christmas this year," said Teague.
Art accompanying story in printed newspaper (not available in this archive): photo/Steve McCurry--Magnum Photos.