People v. Gosberry, No. 57478

• Court: Supreme Court of Illinois
• Writing for the Court: SIMON; SIMON
• Citation: 93 Ill.2d 544,449 N.E.2d 815,70 Ill.Dec. 468
• Decision Date: 21 April 1983
• Docket Number: No. 57478
• Parties: , 70 Ill.Dec. 468 PEOPLE v. GOSBERRY.

Page 815

449 N.E.2d 815 93 Ill.2d 544, 70 Ill.Dec. 468 PEOPLE
v.
GOSBERRY. No. 57478. Supreme Court of Illinois. April 21, 1983.

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[70 Ill.Dec. 469] Reported below: 109 Ill.App.3d 674, 65 Ill.Dec. 99, 440 N.E.2d 954.

SIMON, J., dissenting.

SIMON, Justice, 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 People v. Davis (1983), 95 Ill.2d 1, 16-17, 69 Ill.Dec. 136, 447 N.E.2d 353, 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, People v. Payne, No. 56907, and People v. Cobb, Nos. 52944, 53038 cons. Payne is awaiting argument, while Cobb 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 Payne or hold it until we decide Payne and Cobb.

The court explains its action only by referring to its recent decision in People v. Davis. I do not agree with my colleagues that Davis is an effective authority for the supervisory order entered today. Davis was a death case involving many issues, and in Davis 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 Davis 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 Davis did not establish that any black jurors had been excluded from the jury for that reason. Second, the court reasoned that under Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, 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 Davis without discussion of its relevance to this case, it is impossible to determine on which rationale used in Davis 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 Davis 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 Davis 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. Payne and Cobb 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

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[70 Ill.Dec. 470] to be different enough from Davis to require a separate and full consideration of their merits.

Davis is not only factually distinguishable from this case, it is also legally distinguishable. Davis relied only on Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, in denying relief to the defendant who claimed that black persons had been systematically excluded from his jury. I submit that Swain is an obsolete precedent because the strength of its holding "has been diminished by later decisions under the sixth amendment in Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, and Taylor v. Louisiana (1975), 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690." (People v. Davis, (1983), 95 Ill.2d 1, 58, 69 Ill.Dec. 136, 447 N.E.2d 353 (Simon, J., dissenting).) The court's opinion in Swain 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 (Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491), 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 (Taylor v. Louisiana (1975), 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690; see Carter v. Jury Com. (1970), 396 U.S. 320, 330, 90 S.Ct. 518, 524, 24 L.Ed.2d 549, 557-58; Smith v. Texas (1940), 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84, 86).

As I observed in my dissent in People v. Davis:

"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 Swain. * * * Swain * * * 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 Taylor and Duncan." (People v. Davis (1983), 95 Ill.2d 1, 58-59, 69 Ill.Dec. 136, 447 N.E.2d 353 (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.

Taylor 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 voir dire to achieve precisely the same result as that decried in Taylor. As the appellate court noted in People v. Payne:

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