*1 ILLINOIS, Plaintiff-Appellee, v. THE PEOPLE OF THE STATEOF GILLIARD, Defendant-Appellant. STEVEN (3rd Division) 81 — 913 First District No. 16, 1983. February
Opinion filed McNAMARA,P.J., dissenting. Cade, Assist- Defender, (Richard E. Chicago Doherty,
James J. Public Defender, counsel), appellant. ant Public Shabat, Les- E. Chicago (Michael Attorney, of Daley, M. State’s Richard counsel), Attorneys, of Crown, State’s Assistant Joseph, Larry J. ter M. People. for the of the court: RIZZI delivered the opinion
JUSTICE Defend- Gilliard, robbery. defendant, guilty A found Steven his denying erred in the trial court ant, black, contends that who pe- used motion for a mistrial because the prospec- examination the voir dire challenges during remptory were from the to exclude blacks tive fair type the. he was denied position It is defendant’s blacks. States of the United amendment under the sixth trial guaranteed ato frustrated affirmatively Constitution because jury drawn a fair cross section community. We reverse conviction and remand case for new trial.
The record the procedure demonstrates that for the with the jury began trial judge interrogating prospective ju- rors. The then attorneys interrogated the prospective jurors panels of four. The first contained one panel black three whites. The a peremptory challenge exercised to excuse the black. When an- *2 she, other black called to fill the too, was was panel, excused the use of a When challenge. the first accepted, panel of jurors did not contain blacks. The any panel second contained no any blacks at time. The third panel contained three white prospec- tive jurors juror. and one black The prospective pe- State exercised to challenge black, remptory excuse and the black was replaced by a white. When accepted, panel jurors third did not contain any blacks. One two alternate who was was selected black. However, the trial court noted in the record that time the by that challenges, State had all of its peremptory exercised and the State “really had no accept juror. choice” but the black as alternate Defendant did exclude black prospective jurors. selected,
After the jury was defendant moved for a mistrial on the basis the State had systematically excluded all the prospec- black tive from the jury, rights guaranteed violation un- him der the Constitution the United The jury States. cards were made part of the record in The conjunction with the motion. ob- prosecutor motion, jected motion, for and as his reasons he opposing prove why stated defendant did not the black excluded and that the did not prospective jurors give any have reasons for jurors. the black The then excluding prospective cited discussed Swain Alabama 13 L. Ed. 2d S. Supreme 85 Ct. in which the Court held that the system- atic of all from striking the State in a single did not the equal violate standard of the protection fourteenth amend- ment of the United States Constitution. The following statements were then made: The prosecutor]: People do have to tell this Court
“[The why they anyone excluded from that It jury. further [Swain] says it’s without and without inquiry being subject Court’s The control. whole basis and fact of the word chal- ‘peremptory lenge,’ allows the you State to exclude without persons telling why. like
We would further to call the Court’s attention to Fleming— versus
* * * for appeal, sufficient cases Because cited you court: mistrial, Mr. there is basis legal no counsel]. [defense one case? Couldwe do more prosecutor]: [The waiting. I have the jury court: If it— prosecutor]: they appeal [The The the con- the law is to can’t They appeal court: trary, legally. them, read cases, I I have basis, the have read
The legal but, however, say I others, will these that have read you plus this: individ- you
I am not speaking think that attitude—I Attorney’s the State’s uals, I the attitude of talking am about in my Office, morally reprehensible I find this is period. It’s discrimination, in my opinion. is a opinion purposeful there have and It’s a bad policy an invidious discrimination. re- attitude and towards Attorney’s policies I find the State’s me, of- is, people personally moval Black and a as a Black lawyer fensive not as Black but person, Black judge. selected, three
Now, the State exercised panel the first the second challenges, two of were Black ladies and whom *3 one no in that so there was group, there were Blacks panel, third Finney, a Mr. and the challenge to one White person one and three Whites excluded. there was Black male panel,
* * * this pro- In I same the same my experience policy, found past cedures followed. right.
All Your motion is denied.
* * * to ex- you If it’s have prosecutor]: say purposeful, you [The clude jury. not the I said it’s but it’s law.” my opinion, court: dis- facie case of racial argues prima that “a appeal,
On
case,
one
just
particular
in
crimination could never
established
that
case,
that
excluded for the sole reason
even if in
all Blacks were
in
this
flatly rejected
argument
were Black.” We
they
1046, appeal
allowed
exclusion
that the
Payne,
We believe that present truly demonstrates the value and Payne. importance case, In this a trial judge experienced in con- voir dire examinations concluded that the State was following ducting the “same and the “same policy” procedures” of “invidious discrimi- nation” that the State has followed in the past selecting when a jury. Although the trial judge found this “morally reprehensible,” he felt compelled by insuperable imposed upon burden defendant in Swain1 and its progeny deny defendant’s motion for a mistrial. Payne unshackles trial in judges these situations and them to permits maintain justice and appearance justice in their courtrooms by allowing them to require prosecutor such situations to make a showing that he is not systematically excluding blacks from a jury solely because of their race. Payne, case, given we held that when it ap- reasonably court, to the trial
pears either its own observation after motion defendant, that is using prosecutor peremptory challenges to systematically exclude blacks from the jury solely because they blacks, the court should require prosecutor demonstrate, exist, whatever facts and circumstances that blacks were not being from excluded they were blacks. At stage, this the burden of that demonstrating the Constitution was not being violated is If prosecutor. the trial court finds that to any challenges questioned State has not sustained its burden of demonstrating excluding that it was not blacks, were the court must then conclude Swain, 1 In may pro court stated a defendant equal establish a bona fide tection violation if he could show “in case after whatever the circum stances, be,” whatever the crime and may whoever the defendant or the victim responsible “is Negroes for the removal who have been selected as qualified jurors by challenges commissioners and who have survived cause, Negroes juries.” (380 petit the result no with ever served on U.S. 824, 837.) L. Ed. 2d It is doubtful that our courts main challenges comprehensive “in tain the records of case after case” that example, necessary it is would be to sustain a defendant’s burden under Swain. As unlikely very many that there are cases which the races excluded would *4 records, be indicated in the let court alone the circumstances under which n.10, were excluded. In Commonwealth Soares 377 Mass. 475-76 n.10, being possibility N.E.2d of sustain his a defendant able to burden Moreover, “illusory.” under as Swain was described it is obvious that under the "case requirement, unconstitutionally deprived after case” the first few defendants to be by prosecutor’s impartial jury peremptory challenges an use would be able showing rights to sustain their burden that their constitutional had been violated. fair- that the as at that fails to with the point comply constituted Constitution, and it cross-section must dismiss requirement Also, venire, remaining thus far selected. it must quash venire, since the is to a from entire accused entitled random draw an that cognizable one has been of a partially totally stripped dismissal, a group Upon unconstitutional means. such different by drawn, begin venire should process should be 1034,1040, 1046,1050-51. again. 106 Ill.
Here, dem after trial reasonably appeared judge, re by onstrated his observations and statements that on the appear cord, using peremptory challenges systemati State was blacks, cally exclude from the were trial demonstrate, should have State what judge required the ever existed, facts and circumstances not being sys blacks were tematically excluded they were blacks. failure the trial impose court to such a on the requirement prosecutor at that stage error, magnitude was and the error was of such that the convic tion must be reversed and case remanded for a new trial. v. Payne (1982), 1034, 1045-46, 106 Ill. App.
1054; People v. Gosberry (1982),
954, 958.
The State argues because there is no transcript the attor- neys’ voir dire examination of the prospective jurors,2 the record not sufficient to support However, argument. defendant’s in making for mistrial, motion defense counsel specified record the circumstances under which the used challenges, its peremptory and defense counsel made the part cards the record. In addi- tion, trial had judge interrogated the prospective and when jurors, he made his express finding that there was purposeftd discrimination against blacks selecting State in he jury, included expressly on the record what had during occurred the jury selection. Under the circumstances, argument the State’s unavailing.
The State next contends that the record is not sufficient sup- port argument defendant’s because the trial did not judge permit prosecutor to amake complete pertinent record of the re- part cord on point this set forth earlier in this It opinion. shows that the trial judge merely precluded citing additional case authority after the judge already had decided to deny defendant’s motion. We therefore conclude that the State’s contention reporter during 2 The court was excused both the defendant this part of the voir dire examination. *5 804 merit.
is without Payne, we Although recog- our decision in this case on base has recently disagreed nize that another division this court with v. In Payne. (People Newsome 3d our (1982), judg- Newsome Swain in ment, arguments made merely reiterates or progeny, any meaningful change, its without benefit. improvement Newsome, Newsome, like Swain and the other cases relied in is upon Payne amendment, based on the fourteenth is solely whereas based on the sixth amendment.3 the two amendments Plainly, equal protection same.4 Unlike the nebulous and indefinite standard of amendment, im- guarantee the fourteenth sixth amendment in partial specific criminal cases is and certain. jury rights the sixth amend- By totally ignoring defendant’s under Newsome ment, rights of a disregards distinction between and the fourteenth amend- defendant under the sixth amendment Newsome court assumes that whether sixth apparently ment. is involved in right right or a fourteenth amendment amendment cases, power remains of the State to these issue the same —the However, challenges. judicial exercise standard of re- peremptory is the nature right assertedly view determined of the constitutional threatened rather the power being violated than exercised (Cf. Borough Ephraim (1981), Schad v. Mount 452 the State. U.S. Payne regard, is misreads when it the first 3 Inthis Newsome states 748, 258, adopt People (1978), 22 Cal. 3d 583 P.2d 148 Cal. Illinois case to v. Wheeler (which prohibits challenges pro to remove Rptr. 890 the State’s use of 1043, 1053.) group bias). (110 App. While solely spective based on holding respects, Payne is agrees in all based on with the rationale and of Wheeler States, amendment the Constitution of the United whereas Wheeler the sixth particular solely provision on a of the California Constitution. based Taylor the two in v. Louisiana 4 Thedistinction between amendments manifest 692, 522, 690, (1975), the court held that a 419 U.S. 42 L. Ed. 2d 95 S. Ct. where exempting unless chose serve was Louisiana statute women from service jury panels from of women from unconstitutional because the exclusion the sixth amend petit juries violates fair-cross-section rule of are drawn which conclusion, (1961), reaching distinguished Hoyt 368 v. Florida its court ment. 159, 57, 118, challenge a similar statute on 7 L. Ed. 2d 82 S. Ct. where U.S. rejected. Taylor “It is had court stated: of the fourteenth amendment basis *** deny equal system process of law or Hoyt such a did not due true that held that sufficiently such protection basis for an ex there was a rational laws because right Hoyt to a emption. involve a defendant’s sixth amendment But did not depriving community prospect and the him a fair section of drawn from cross right proper ato right if class are excluded. The of that women as a 522, 533-34, grounds.” 42 L. merely rational U.S. cannot be overcome 699-700. S. Ct. Ed. 2d 690. 700. 692. 61, 671, 2182; Ed. Ct. Thomas Col 68 L. 101 S. 516, 529-30, L. Ed. lins Illinois, 322; Evanston City Lubavitch Chabad House Inc. Here, right as 225-26.) Payne, right the sixth sertedly threatened or violated is defendant’s under therefore, to a is that amendment fair and impartial jury, amendment Since the decisions applied. which must be examined and and in Newsome Swain and its are based on the progeny fourteenth amendment and not the sixth specific under amendment, they controlling are not here.
In Payne, Taylor we referred to the fact v. Louisiana *6 522, 530, 698, 692, 690, L. Ed. 2d 95 S. Ct. 697- “ 98, the accepted requirement Court ‘the fair-cross-section Supreme to jury fundamental the trial the Sixth Amend- guaranteed ” ” “ ment’ and stated that ‘the has solid foundation.’ We requirement pointed case, also out that in the held same the Court Supreme “ the of systematic seg- State’s exclusion from the ‘identifiable jury ments playing major community roles the cannot be with squared ” 1034, the of (106 1036, constitutional trial.’ concept jury 1046, 1052, 436 N.E.2d quoting 419 U.S. L. Ed. 2d Payne, we stated: “Although Taylor the case involved the exclusion of a dis- crete group during the venire selection rather than during the voir dire selection of jurors, see no we rational difference war- the of ranting allowance racial discrimination the State in the latter instance but not the Obviously, very former. the pur- pose of to tolerate refusing racial discrimination in the composi- tion of the is venire to the prevent systematic State’s exclusion of racial any composition the of the group jury itself. The de- sired goal interaction of a cross section of the community venire, rather, does not occur within the but is effectuated petit that is selected and to jury sworn the issues. It try follows exclusion of prospective jurors solely because of their race equally is invidious and unconstitu- selection, i.e., tional at any stage from the time the jury general jury list until prepared by is commissioner jury jury is If were actually selected and sworn. we to hold other- wise, the constitutional to a drawn from fair right jury a cross section of the be community nullity through could rendered challenges. use have to resort to We would casuistry may hold that do at voir dire selection doing what it from at constitutionally precluded 1036-37, of the jury.” selection venire 1046, 1048. it would be violation explain why does not The Newsome court exclude systematically for the State to amendment sixth solely during venire women blacks5 a violation or race it would gender of their but during so the voir do amendment for sixth of jurors. dire selection to an
Moreover, a defendant’s only upon is based amendment, the roles the sixth but also jury under impartial trial. New- itself in a criminal and the court prosecutor are essen not address of these issues which believe any some does ex may systematically of whether a prosecutor tial to a determination of their race. any given clude from a jury does not take Newsome prosecutor, to the role of the Specifically, as is the representative that the precept into account the defendant, much his duty and it is as including people, all as those of of the defendant rights the constitutional safeguard 20 Ill. 2d (People other citizen. v. Oden 375, 378, 381 582, 588; Valdery (1978), the fact that the pros also overlooks 1219-20.) Newsome controversy, rep to a but ordinary party ecutor does not represent is as obligation govern impartially whose sovereignty resents a all; interest, at and whose obligation govern as its compelling not that it shall win a but therefore, prosecution in a criminal (1935), 295 U.S. v. United States (Berger shall be done. justice *7 629, a 78, 88, 1314, 1321, 633.) 55 S. Ct. When 79 L. Ed. solely in any given from the excludes blacks systematically the constitutional blacks, safeguarding he is not are they because He is fact, seeking only is not justice. he rights of the defendant. of his ethi This is a clear violation a case and convict. seeking win Payne (1982), v. 106 People cal and See professional duty. 1046, 1048; (1935), v. 1037, Berger United States
1034, 436 N.E.2d 629, 633; v. 1314, 1321, People S. Ct. 78, 88, L. 55 295 79 Ed. U.S. 588; v. 483, 582, People 470, 170 N.E.2d 20 Ill. 2d (1960), Oden 1219-20; 1217, 375, 378, Valdery (1978), 65 from systematic exclusion of women 5 Although Taylor involved the v. Louisiana Payne systematic exclusion of blacks gender involved the juries of their and because applicable the race, holding principles in are whenever and of their the during systematically excluded group are of discrete members group. membership in the discrete of their selection of n.2, 1046, 1034, n.2. 1048 Payne (1982), App. 3d 1037 v. 106 Ill. of 1.1(c) ABA Code Standards, (1974); Function ABA Prosecution (1979). EC 7—13 Responsibility, Professional in a criminal prosecution, As to role of the court itself trial is as of in a criminal appearance justice must mindful be else, nothing appearance in if Clearly, fact. important justice as v. (Rose itself. process integrity judicial affects justice 739, 749, Ct. 545, 555-56, L. Ed. 2d 99 S. Mitchell 443 U.S. (1979), why 2993, important judiciary This is one of the reasons 3000.) here seeking State to do not of what reality must blink at es and Newsome. seeking in as and cases such tablish, racial discrimination judicial approval, practice succeeds, us, if the it will in the of its citizens. To prosecution courtrooms, our but justice destroy appearance on the grave integrity judicial process. will also cast doubt in a ex are as criminal case are Those citizens who selected the defendant on basis of acts and pected judge solely can hardly expected on the basis of his race. The selected be themselves, if were selected accomplish they, this task see that mem the State not on of their individual but as qualities, basis Thus, particular appearance bers of race. order to maintain the our in se justice integrity judicial we believe that process, Constitution, in a lecting criminal like our 559, Plessy 537, Ferguson (1896), must be See 163 U.S. color-blind. 263,16 1138, 1146 J., dissenting). 41 L. Ed. S. (Harlan, Ct. shortcoming This to what is another major leads we believe Newsome and cases decided. Newsome does not forthrightly similarly excluding are recognize acknowledge prosecutors actually their in criminal cases because of serving juries blacks from However, open race when are defendants. it is an secret there black using their prosecutors Chicago pe- and elsewhere have been blacks, challenges to eliminate all all remptory but blacks, juries token in criminal cases where the defendants Biased Lawyers Now It’s Harder to Pick Waltz, (See blacks.6 Jury, 13, 1982, Sun-Times, 1.) at col. Since all others Chicago July this, see our minds to properly can and understand how can we shut (Child Tax Labor Case it? 66 L. Ed. (1922), igno- should not There comes when we point Indiana of what we know men. Watts v. rant as judges 1347,1349. 1801,1805, L. Ed. U.S. S. Ct. appeal in 6 Thelist of cases in which the issue has raised on some form con grow. (See People 1043; People
tinues to v. Newsome *8 808 judiciary only
We believe that the must not forthrightly recognize acknowledge prosecutors practicing racial discrimination in the of juries in criminal cases there where are black defendants, the judiciary but should also demonstrate an awareness of the effect of the problem society. systematic our exclusion of given blacks from service because of their race impairs confidence of the in the public administration justice. Such racial discrimination at war with our basic con- cept representative democratic and a society government. The accused, harm is not but to as a society whole. See Rose v. 545, 556, 739, (1978), 749, Mitchell 61 L. 2d Ed. 2993, 3000; People Payne (1982), v. 106 Ill. App. 3d 436 1046, N.E.2d 1049.
We also judicial believe awareness of the existence problem and its effect our upon society is essential our sys- tem of law is not revelation, based some upon transcendental but conscience of our society ascertained as best it can be by a tribunal for the disciplined task. We believe the conscience of our soci- ety longer can no tolerate the State’s exclusion of blacks solely because of their juries race. It does not matter pro- what cedure form the State to accomplish uses such discrimi- pernicious simple nation. The fact should not done State un- People Gosberry (1982), Turner 519, 637; v. (1982), App. Ill. 110 3d 442 N.E.2d 109 People Teague (1982), 674, 954; v. App. 891, App. Ill. 3d 440 N.E.2d 108 Ill. 3d 439 1066; People Payne (1982), People 1034, 1046; v. App. N.E.2d 106 Ill. 3d 436 N.E.2d 1119; People v. (1982), 10, Belton v. Dixon App. (1982), 105 Ill. 3d 433 N.E.2d 105 Ill. People 340, 369; v. App. Batteast (1982), (Rule App. 3d 434 N.E.2d 105 Ill. 3d 1201 23 order); People 1046; People v. Gaines (1981), 342, v. Ill. Mims 88 2d 430 N.E.2d People (1981), 673, 1126; v. App. (1981), 103 Ill. 3d 431 N.E.2d Lavinder App. 102 Ill. 662, 243; People v. (1981), 16, 3d 430 Clearlee App. N.E.2d Ill. 101 3d 427 N.E.2d 1005; People Vaughn (1981), 840; People v. 1082, App. Ill. v. 100 3d 427 N.E.2d People Tucker (1981), 606, 511; v. App. (1981), 99 Ill. Allen App. 3d 425 N.E.2d Ill. 96 100; People 871, Bracey (1981), v. App. 864, 3d 422 N.E.2d 93 Ill. 3d 417 N.E.2d 1029; People People v. (1980), 523, 1117; Fleming Smith App. 91 v. Ill. 3d 414 N.E.2d 1330; People Attaway (1976), (1980), 99, v. App. App. 3d 91 Ill. 413 N.E.2d 41 Ill. 3d People 837, 448; 779, v. Thornhill (1975), App. 8; 354 N.E.2d 31 Ill. 3d 333 N.E.2d People King (1973), 731; People 291, (1973), v. v. Powell 54 Ill. 2d 296 N.E.2d 53 Ill. 409; People Petty (1972), 465, 951, v. 509; 2d 292 N.E.2d 3 Ill. 3d 279 N.E.2d People 439; People v. Fort (1971), (1970), v. Butler 133 Ill. 273 N.E.2d 89; People v. 437; Cross (1968), 40 Ill. 2d People Dukes (1960), 84; v. v. Harris 169 19 Ill. 2d N.E.2d addition, substantially the issue been raised in People Banks, Dist., argued 1st No. a case which has been has not but 79 — yet County. All but cases Cook decided. four these were tried in Gosberry (People or form. procedure der any 954, 960.) Racial discrimination *9 3d N.E.2d and dis- in our See cases cited longer acceptable society period. is no — (1977). Justice 750-78 Kluger, Simple cussed in R. “ that court does not condone opinion The Newsome states ‘[t]his the the to exclude challenges prospective use of peremptory ” v. Allen (110 quoting People Ill. 3d App. basis of race.’ However, in 871, 878, 422 App. 106.) 3d con- something then opinion our the Newsome does worse judgment, to because, effect, in it serves practice speaks done the which se- the in the by the of racial discrimination practice perpetuate view, racial the selection lection of our discrimination juries. or must be accomplished subtly brazenly, juries by whether terms, or the will be judiciary in no uncertain by judiciary stopped its contin- by allowing as an to such discrimination serving accomplice This mere condonation. goes uation in our courtrooms. beyond solved suggests by The Newsome should be problem court However, 3d legislature. (110 App. 1055.) problem Ill. There- exists in the courtrooms and not the halls of legislature. to con- fore, we in the cannot afford to allow judiciary problem legislative it one of domain. by labeling tinue within our own realm 674, 681-82, Ill. Gosberry (1982), (People must forget appearance justice We Thus, itself courtroom is as as in fact. important justice judiciary selecting even the of racism State in stop appearance by must jury- no Payne spe- also states that “sets forth Newsome opinion to courts guidelines or to be as an aid the trial
cific standard followed or this criticism (110 n.3.) reject We bar.” A of blacks from a Payne. prosecutor’s systematic exclusion they varying are blacks occurs under circumstances solely because reason It is for this precise which are not definition. susceptible Payne reasonably by that when it to trial appears judge holds defendant-, prosecut- or that the by own after motion observation exclude ing to attorney using challenges peremptory blacks, judge the trial blacks from the are jury solely they demonstrate, to facts and whatever require should ex- exist, being systematically circumstances that blacks were not No further cluded from the were blacks. they or trial judges, or is needed advisable. guideline Plainly, standard given during their in the courtroom the entire presence proceeding dire selection, all facets of the voir should ability and their observe distinguish be able to reasons for bona exclusion from contrived fide declarations If fit judges of motives. trial are to make all the other meaningful during trial, decisions the course of then fit they are Moreover, made, make the decisions if required here. errors are subject any review the same other errors that occur may during trial.
The Newsome court states that our system of chal- be lenges would altered significantly Payne. (110 under 1043, 1055.) We If the disagree. prosecutor seeks to ex- peremptorily people cuse from jury service for reason other than the fact that they happen belong to a discrete then group, applica- has no Moreover, bility relevance. it should recognized no application peremptory challenges used defendant. This is so because the Bill of Rights in this (specifically, the sixth amendment) only citizens protects against acts government. government reciprocal has no such constitutional entitlement. point This is made clear very by Associate Professor James P. Carey, *10 Law, Chicago, of of Loyola University School who states: “Against background this one immediate to response ask, is if operates to the defense in this should the way, why State be the to handicapped? Isn’t State entitled a fair trial? It is to Payne’s answer these which mark it as very questions a special decision.
In criminal every prosecution power the of the State is ar- against constitution, rayed the individual. Our and especially amendments, the eight first limit the power government. is precisely State limited because it is the State. This is the genius essence and of our constitutional scheme.
Although is a to a criminal lawsuit and is en- party trial, titled to a fair it not to is entitled the the protections Bill Rights, adopted which were to curtail State vis-a- power vis the it is entirely individual. Therefore irrelevant de- challenges way fense counsel use in the same the State does.7 For what is crucial is that the use State’s England, peremptory challenges may 7 Wenote that since be exercised only by challenges cause, only the defendant. for Except require can Crown challenge whom panel it wishes to to stand aside until the defendant Then, selected, challenges. exercised all his aif has not been who challenge have stood aside will be them used unless the Crown can for cause. The procedure having juror because, peremptory challenge a stand aside is not a even seldom, Crown, procedure employed by juror when is which is who has may actually juror as a been stood aside be seated after defendant has exercised right, right by jury composed to trial erodes a precious fair section the community. cross right In the sixth amendment basing decision upon [its] constitutional general premise trial and *** limited, on solid [Payne] ground. of the State is power use though It then that even defense counsel peremp- is clear so.” for the State to do impermissible tories in this way, Newsletter, 13 Ill. St. B.A. Thoughts Payne, Some 1982). 7 (August Judicial Ad. of pe- alter our significantly system does
Accordingly, Rather, its remptory challenges. Payne requires justify State instances,8 excluding actions certain prospective jurors relationship based on rational between the perspective effect, meaning and the real Payne merely gives individual. what otherwise vacuous regarding would be statements courts State’s exclusion of from the jury solely of their race. People Gosberry App. 3d 959. right a fair and impartial guaranteed sixth amendment is one precious rights most have as citi we zens of this country. It follows that we in compel have a judiciary ling duty see that this or scrupulously right is de compromised single defendant, nied as to any lest the all right eroded lost for citizens. We applied have this this con perspective to clude that for the reasons stated in this defendant’s sixth opinion, to a right amendment fair and which impartial jury, right includes the to a jury drawn from a fair the community cross section of and the corresponding not to have frustrate that affirmatively entitlement, Therefore, was violated. defendant’s conviction cannot stand. *11 challenges. all Specifically, Halsbury’s England 26 par. (4th 1979) Laws of 624 ed. states: “The Crown has peremptory challenges.” People no to make v. (1982), 1034,1039 n.4, 1046,1050 106 Ill. 3d n.4. 8 Significantly, requirement, except Swain makes same Swain holds that requirement play only prosecutor practiced comes into after racial discrimina tion in peremptory challenges “peremptory the use of in “case after case.” term challenge” Swain, any exception” does not mean under “absolute” “without and we exceptions prosecutor’s priv know no case which holds there are no to the ilege peremptory challenges. peremptory challenge privilege exercise has al ways subject prosecutor to control the trial if it viola court is used right guaranteed tion of a to the defendant under the See v. Constitution. Swain (1965), 224,13
Alabama U.S. L. 2d 85 Ed. S. Ct. 838. addition, that the roles of the believe using pe- and the itself in a criminal trial the State from preclude court exclude remptory challenges any given any stage are blacks in at selec- case, tion of this to this we conclude that jury. Applying perspective this presents an additional reason defendant’s conviction cannot why stand. reversed, and the case is remanded
Accordingly judgment a new trial.
Reversed remanded. J.,
WHITE, concurs.
McNAMARA, P.J., dissenting: otherwise, find
I I constitutional or infirmity, dissent. no (Swain v. challenges. of its Alabama State’s exercise peremptory 824; v. Harris People 13 L. 2d Ed. 809; Teague (1982), People 17 Ill. N.E.2d 1066; Fleming (1980), This is true in the where present particularly the voir was made of report proceedings of the no agreement parties objected days two after dire and where defendant first process jury. error the State’s use its assignment of Since defendant’s of conviction. challenges, judgment I would affirm COMPANY, v. RO Plaintiff-Appellee, THE INSURANCE TRAVELERS al., Defendants-Appellants. et COMPANY BERT R. ANDERSON (2nd Division) 81 — 2345 First No. District 10, 1983. 18, 1983. Rehearing March denied January Opinion filed