Opinion
1983.
(57909) Walters v. Heartland Chemicals, Inc. ....................... Denied.
(57962) Waukegan Port District v. Kyritsis ......................... Denied.
(57879) Williams v. Thompson ....................................... Denied.
(58138) Williamson v. Doyle ........................................ Denied.
(57829) Wilson v. M W Gear ....................................... Denied.
(57722) Wolff v. Chicago Transit Authority ......................... Denied.
(57789) Yorke v. Stineway Drug Co. ................................. Denied.
People v. Gosberry 93 Ill.2d 544 People v. Davis 95 Ill.2d 1 16-17 People v. Payne People v. Cobb Payne Cobb Payne Payne Cobb. People v. Davis. Davis Davis Davis Davis Davis Swain v. Alabama 380 U.S. 202 13 L.Ed.2d 759 85 S.Ct. 824 Davis Davis Davis Davis Payne Cobb Davis Davis Davis Swain v. Alabama 380 U.S. 202 13 L.Ed.2d 759 85 S.Ct. 824 Swain Duncan v. Louisiana 391 U.S. 145 20 L.Ed.2d 491 88 S.Ct. 1444 Taylor v. Louisiana 419 U.S. 522 42 L.Ed.2d 690 95 S.Ct. 692 People v. Davis 95 Ill.2d 1 58 Swain Duncan v. Louisiana 391 U.S. 145 20 L.Ed.2d 491 88 S.Ct. 1444 Taylor v. Louisiana 419 U.S. 522 42 L.Ed.2d 690 95 S.Ct. 692 Carter v. Jury Com. 396 U.S. 320 330 24 L.Ed.2d 549 557-58 90 S.Ct. 518 524 Smith v. Texas 311 U.S. 128 130 85 L.Ed. 84 86 61 S.Ct. 164 165 People v. Davis Swain. Swain Taylor Duncan. People v. Davis 95 Ill.2d 1 58-59 Taylor voir dire Taylor. People v. Payne Taylor voir dire voir dire 106 Ill. App.3d 1034 1036-37 Payne Cobb Swain. Davis, Swain People v. Davis 95 Ill.2d 1 58 Swain Swain People v. Davis 95 Ill.2d 1 16 Swain People v. Cobb People v. Davis 95 Ill.2d 1 People v. Gilliard 112 Ill. App.3d 799 People v. Newsome 110 Ill. App.3d 1043 People v. Turner 110 Ill. App.3d 519 People v. Gosberry 109 Ill. App.3d 674 People v. Teague 108 Ill. App.3d 891 People v. Payne 106 Ill. App.3d 1034 appeal allowed 91 Ill.2d 577 People v. Belton 105 Ill. App.3d 10 People v. Dixon 105 Ill. App.3d 340 People v. Gaines 88 Ill.2d 342 People v. Mims 103 Ill. App.3d 673 People v. Lavinder 102 Ill. App.3d 662 People v. Clearlee 101 Ill. App.3d 16 People v. Vaughn 100 Ill. App.3d 1082 People v. Tucker 99 Ill. App.3d 606 People v. Allen 96 Ill. App.3d 871 People v. Bracey 93 Ill. App.3d 864 People v. Smith 91 Ill. App.3d 523 People v. Fleming 91 Ill. App.3d 99 People v. Attaway 41 Ill. App.3d 837 People v. Thornhill 31 Ill. App.3d 779 People v. King 54 Ill.2d 291 People v. Powell 53 Ill.2d 465 People v. Petty 3 Ill. App.3d 951 People v. Fort 133 Ill. App.2d 473 People v. Butler 46 Ill.2d 162 People v. Cross 40 Ill.2d 85 People v. Dukes 19 Ill.2d 532 People v. Harris 17 Ill.2d 446 Watts v. Indiana 338 U.S. 49 52 93 L.Ed. 1801 1805 69 S.Ct. 1347 1349 People v. Gilliard 112 Ill. App.3d 799 807 Swain Mt. Healthy City School District v. Doyle 429 U.S. 274 283-84 50 L.Ed.2d 471 481 97 S.Ct. 568 574 voir dire cf. People v. Cornille 93 Ill.2d 497 512-13 People v. Payne 106 Ill. App.3d 1034 1040 People v. Wheeler 22 Cal.3d 258 583 P.2d 748 Commonwealth v. Soares 377 Mass. 461 387 N.E.2d 499 Payne. not Davis Payne Cobb People v. Newsome People v. Teague Gosberry Teague Newsome Davis APPENDIX
The following is the text of Justice Simon's dissent from the order entered in (1983), , upon allowance of the petition for leave to appeal.
JUSTICE SIMON, dissenting:
I am disappointed by the court's cavalier treatment of the important issue raised in this case: whether the sixth or the fourteenth amendment to the Federal Constitution, or the comparable provisions of the State Constitution (Ill. Const. 1970, art. I, secs. 2, 13) are violated when it is convincingly demonstrated that the State is using peremptory challenges in criminal prosecutions to exclude black persons from juries solely because of their race. In this case the appellate court held that it was unconstitutional for the prosecutor to have used peremptory challenges for this purpose. I disagree with this court's action granting the State's petition for leave to appeal but issuing a supervisory order that summarily reverses the appellate court's decision on the authority of (1983), , , without further argument or discussion.
The disposition of this case by supervisory order is premature because this court has not had an opportunity to deal squarely and in depth with all of the constitutional challenges which might be brought against the intentional exclusion of black persons from juries and which are fully raised in two cases on our docket, , No. 56907, and , Nos. 52944, 53038 cons. is awaiting argument, while is awaiting decision. Moreover, in entering its supervisory order, the court has misinterpreted the Supreme Court's precedent and adopted a position which is unwise from the
standpoint of judicial administration — it is likely to encourage the further abuse of peremptory challenges in the future. I would allow the State's petition for leave to appeal and either consolidate this case with or hold it until we decide and
The court explains its action only by referring to its recent decision in I do not agree with my colleagues that is an effective authority for the supervisory order entered today. was a death case involving many issues, and in the issue involved in this case did not receive the detailed consideration that it deserves.
Equally disturbing is that the court's mere citation of lacks precision. In that case the court advanced two reasons for rejecting the defendant's argument that his constitutional rights were violated when the prosecutor used peremptory challenges to exclude black jurors on the basis of race. First, the court observed that the record in did not establish that any black jurors had been excluded from the jury for that reason. Second, the court reasoned that under (1965), , , , it is only the use of peremptory challenges to achieve a systematic exclusion of black jurors in case after case that violates equal protection of the laws. Because the supervisory order here merely states reliance on without discussion of its relevance to this case, it is impossible to determine on which rationale used in the court intends to rely. I suggest that a supervisory order should clearly reflect the basis for its entry. Otherwise, how is the lower court to follow its mandate?
The court in pointed out that the record in that case did not clearly show that a number of prospective jurors were excluded on the basis of race with the purpose of obtaining an all-white jury. As a result, the court's discussion of the issue in did not have the benefit of a factual situation which clearly showed the exclusion of black jurors on that basis. On the other hand, in the present case, all seven of the prosecution's peremptory challenges were used against black persons, and through the use of these challenges the prosecution limited
black representation on the jury to one person. and are also cases in which the record shows an intent to obtain a jury with as few black persons as possible and in which the systematic use of peremptory challenges accomplished that result. The factual contexts of these cases appear to be different enough from to require a separate and full consideration of their merits.
is not only factually distinguishable from this case, it is also legally distinguishable. relied only on (1965), , , , in denying relief to the defendant who claimed that black persons had been systematically excluded from his jury. I submit that is an obsolete precedent because the strength of its holding "has been diminished by later decisions under the sixth amendment in (1968), , , , and (1975), , , ." (, (1983), , (Simon, J., dissenting).) The court's opinion in dealt only with equal protection of the laws under the fourteenth amendment and was written before the Supreme Court held that the sixth amendment's guarantee of a trial by impartial jury in criminal cases applies to the States through the fourteenth amendment's due process clause ( (1968), , , ), and before the Supreme Court held that State juries must be selected from a fair cross section of the community and must not be purged of members of any group solely on the basis of race or sex ( (1975), , , ; see (1970), , , , , , ; (1940), , , , , , ).
As I observed in my dissent in :
"The rights of an accused in a State trial to the strictures of the sixth amendment in the selection of a jury and their impact on exclusion of persons from a jury by peremptory challenge only on the basis of race, sex or religion were not decided in * * * * * * is not authority for a holding that [peremptory
challenges aimed at producing an all-white jury] do not violate the sixth amendment, particularly in light of and " ( (1983), , (Simon, J., dissenting).)
This observation is critically important in this case because the sixth amendment was specifically relied on by the defendant and the appellate court. This court has not even mentioned the bearing of the sixth amendment on this problem, let alone considered it.
held that the sixth amendment is violated when a State chooses the jury venire in a way that achieves a systematic racial imbalance on juries in State court proceedings. I believe that the sixth amendment similarly prohibits the State from using its peremptory challenges at to achieve precisely the same result as that decried in As the appellate court noted in :
"Although the case involved the exclusion of a discrete group during the venire selection rather than during the selection of jurors, we see no rational difference warranting the allowance of racial discrimination by the State in the latter instance but not the former. Obviously, the very purpose of refusing to tolerate racial discrimination in the composition of the venire is to prevent the State's systematic exclusion of any racial group in the composition of the jury itself. The desired goal of interaction of a cross section of the community does not occur within the venire, but rather, is only effectuated by the petit jury that is selected and sworn to try the issues. It follows that the systematic exclusion of prospective jurors solely because of their race is equally invidious and unconstitutional at any stage of the jury selection * * *. If we were to hold otherwise, the constitutional right to a jury drawn from a fair cross section of the community could be rendered a nullity through the use of peremptory challenges. We would have to resort to casuistry to hold that a State may do at the selection of the jury what it is constitutionally precluded from doing at the venire selection of the jury." , .
Even if the majority were correct in refusing to consider the sixth amendment question raised by the parties in this case and in and , and decided by the courts below, there is
still a serious question whether the prosecution's use of peremptory challenges also violated the fourteenth amendment's equal protection clause as construed by the Supreme Court in As I pointed out in my dissent in did not endorse the idea "that the peremptory challenge is * * * designed to facilitate or justify a system which results in denying black persons 'the same right and opportunity to participate in the administration of justice enjoyed by the white population'" ( (1983), , (Simon, J., dissenting) (quoting )). On the contrary, the decision recognized implicitly that peremptory challenges were not completely beyond the control of the courts.
The majority itself concedes that holds that "a systematic and purposeful exclusion of blacks from the jury, 'in case after case,' raises a question under the fourteenth amendment." ( (1983), , (quoting ).) The number of cases in which the issue has in some way arisen continues to grow:
, Nos. 52944, 53038 cons.
(under advisement, Ill. Sup. Ct.); (1983), ; (1983), ; (1982), ; (1982), ; (1982), ; (1982), ; (1982), , (1982), ; (1982), ; (1982), ; (1981), ; (1981), ; (1981), ; (1981), ; (1981), ; (1981), ; (1981), ; (1981), ; (1980), ; (1980), ; (1976), ; (1975), ; (1973), ; (1973), ; (1972), ; (1971), ; (1970), ; (1968), ; (1960), ; (1959), .
In view of the staggering number of cases in this State raising this issue, I question whether it has not been established that prosecutors in Illinois have been purposely and systematically using peremptory challenges in case after case to achieve the exclusion of black persons from juries in a State having one of the largest populations of black persons in the nation.
The appellate court recently noted:
"[I]t is an open secret that prosecutors in Chicago and elsewhere have been using their peremptory challenges to systematically eliminate all blacks, or all but token blacks, from juries in criminal cases where the defendants are blacks. [Citation.] Since all others can see and understand this, how can we properly shut our minds to it? [Citation.] There comes a point when we should not be ignorant as judges of what we know as men. (1949), , , , , , ." ( (1983), , .)
Whether this systematic use in Illinois of peremptory challenges to exclude black jurors on the basis of race violates the equal protection clause of the fourteenth amendment even under the majority's interpretation of the standards announced by the Supreme Court in calls for examination by this court.
Even if the sixth and fourteenth amendments to the Federal Constitution permit State prosecutors to use peremptory challenges systematically to exclude black jurors, something I believe they do not, we, as judges of the supreme court of this State, have an independent obligation to apply our State constitution to the defendant's claim. In fulfilling that obligation we are not bound by the precedent of the United States Supreme Court. I interpret article I, section 13, of our 1970 constitution to guarantee to each criminal defendant a trial by an impartial jury selected from a fair cross section of the community in which he is tried.
(Ill. Const. 1970, art. I, sec. 13.) Our constitution also recognizes the equality of all citizens, regardless of race, as a fundamental public policy. (Ill. Const. 1970, art. I, sec. 2.) I ask if we are being faithful to these important and constructive moral principles when we permit the State to use peremptory
challenges to exclude black jurors from jury service solely on the basis of race. Just as the unconstitutional discharge of State employees cannot be excused by referring to the general rule that employers have the right to hire and fire as they please and for any reason they please (see (1977), , , , , , ), so racial discrimination in the cannot be condoned by simply pointing to the word "peremptory" and asserting that it means what it says. The prosecution may, of course, use peremptory challenges for any legitimate reason under our constitution; but surely this court cannot condone purposeful discrimination against or exclusion of black persons as a legitimate purpose no matter in what guise. The obligation to be fair to all of the citizens he represents and not to discriminate is as important a function and responsibility of the public prosecutor as is the seeking of convictions ( (1983), , ).
The problem is to discover, in each case, whether the peremptory challenges are being used to discriminate against black persons or whether they are being used against black jurors for some legitimate reason. To this end the appellate court in (1982), , , adopted a workable standard. When it reasonably appears to the trial court that the prosecution is systematically using peremptory challenges to exclude black jurors from the jury solely on the basis of race, the prosecution must come forward with evidence that its challenges were based on some nonracial motive. This is the same test as that used by the courts of California ( (1978), , , 148 Cal.Rptr. 890) and Massachusetts ( (1979), , ) for regulating the use of peremptory challenges by State prosecutors, and courts in those States have had no apparent difficulty in applying it.
Finally, even if there were no constitutional prohibitions against the practice of using peremptory challenges to systematically exclude black persons from juries, I suggest that our supervisory obligation to ensure that justice is done in every court
in this State requires us to issue guidelines to the trial courts similar to those set forth by the appellate court in The cost of not doing so is substantial. The sheer number of cases I have cited in which this practice has been alleged to have occurred indicates that even inaction by us in the cases that reach this court will encourage the practice in the future. This, I fear, will lead to the perception by circuit judges, prosecutors, attorneys, and the public generally that we are not only giving judicial sanction to racially discriminatory activity but are doing so in a way that is likely to undermine the jury system and pervert its goal of seeking the truth. This dangerously erodes the confidence which the people of this State must have in the fairness and impartiality of our system of justice and will ultimately discourage respect for the law. This court's decision to issue a supervisory order which has the effect of commanding the lower courts to regulate the use of peremptory challenges when used for racially discriminatory purposes is certain to give this impression.
Before issuing such a command, should we not at least explore the issue in much greater depth than we did in , particularly because and are awaiting disposition? We do not give the issue such consideration in this case when it is disposed of by a summary supervisory order; nor do we give the issue fair consideration in , No. 57864, and , No. 57452, where the appellate court's toleration of racially based juror exclusion is rubber-stamped by this court's denial of the defendants' petitions for leave to appeal.
The issue raised in these cases will not fade away; we cannot sweep away the controversy surrounding this issue without due consideration of the arguments raised by the parties in these cases. To enter a supervisory order in and deny petitions for leave to appeal in and based on authority as weak as is a most inappropriate way of dealing with a serious and perplexing question which threatens to undermine the fairness of criminal proceedings in our State and which implicates at least two fundamental constitutional guarantees. It is unnecessary and tragic to give such short shrift to an
issue of such great public concern. This is why I ask, What is the hurry?