APPEAL from the Circuit Court of Cook County; the Hon. AUBREY
F. KAPLAN, Judge, presiding.
JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
Defendant, Stanley Payne, was found guilty by a jury and sentenced on three counts of aggravated battery and one count of armed violence. The jury was unable to reach a verdict as to other counts against him. Defendant, who is black, contends that, over his objections, the prosecutor systematically used peremptory challenges during the voir dire examination of the jurors to exclude blacks from the jury solely because they were blacks. *fn1 It is defendant's position that he was denied the type of fair trial guaranteed under the sixth amendment of the United States Constitution because the State affirmatively frustrated his right to a jury drawn from a fair cross section of the community. We reverse the convictions and remand the case for a new trial.
We believe this case presents broader issues than those which surface from a mere factual recitation of what occurred. This case involves the proper roles of the State, the prosecuting attorney and the court itself in a criminal trial.
Initially, we must not overlook the fact that in a criminal trial, it is the State that is the plaintiff throughout the entire proceeding. Thus, if a State's Attorney, assistant State's Attorney, jury commissioner or prosecuting attorney effectively practices racial discrimination, it is not just the individual officer or attorney who is racially discriminating against the accused, but rather the State itself. With this in mind, the threshold question in this case is not whether on voir dire a prosecuting attorney can exclude blacks from serving as jurors solely because they are blacks, but whether the State itself can so exclude blacks. We hold that such acts by the State are repugnant to the sixth amendment of the Constitution of the United States.
A defendant's right to an impartial jury under the sixth amendment gives him a constitutional entitlement to a jury drawn from a fair cross section of the community. (Taylor v. Louisiana (1975), 419 U.S. 522, 528-30, 42 L.Ed.2d 690, 696-98, 95 S.Ct. 692, 696-97.) We believe that the State may not at any stage of the jury selection process affirmatively frustrate this entitlement by systematically excluding blacks from the jury solely because they are blacks. In Taylor, the Court stated:
"Our inquiry is whether the presence of a fair cross section of the community on venires, panels, or lists from which petit juries are drawn is essential to the fulfillment of the Sixth Amendment's guarantee of an impartial jury trial in criminal prosecutions.
We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. Duncan v. Louisiana, 391 U.S., at 155-156. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial." 419 U.S. 522, 526-30, 42 L.Ed.2d 690, 695-98, 95 S.Ct. 692, 695-97.
• 1 Although the Taylor case involved the exclusion of a discrete group during the venire selection rather than during the voir dire 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, i.e., from the time the general jury list is prepared by the jury commissioner until the jury is actually selected and sworn. 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 voir dire selection of the jury what it is constitutionally precluded from doing at the venire selection of the jury.
• 2 Our holding that the State may not exclude blacks from the jury during the voir dire solely because they are blacks does not mean that any individual black is insulated from the use of peremptory challenges to exclude any individual. Nor does our holding mean that a defendant is entitled to a petit jury proportionately representing every group in the community or that the petit jury must include blacks because the defendant is black or for any other reason. What it does mean, however, is that a defendant is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross section of the community as the process of random draw and constitutionally acceptable procedures permit. It also means that the State may not affirmatively frustrate this constitutional entitlement. *fn2
• 3 We next look to the role of the prosecuting attorney in a criminal case. The duty of the prosecuting attorney is to seek justice, not merely to convict. (ABA Standards, The Prosecution Function 1.1(c) (1974).) Thus, the prosecuting attorney must be a champion for justice first and secondarily an advocate seeking conviction. (ABA Code of Professional Responsibility EC 7-13 (1979).) When a prosecutor excludes blacks from the jury solely because they are blacks, he is not primarily seeking justice. *fn3 He is only seeking to convict. This is a clear violation of his professional duty.
It is worth reflecting on the fact that the framers of both our Federal and State constitutions intended to give the accused an "inestimable safeguard against the * * * overzealous prosecutor" by providing an accused with the right to be tried by a jury of his peers. (Duncan v. Louisiana (1968), 391 U.S. 145, 156, 20 L.Ed.2d 491, 499, 88 S.Ct. 1444, 1451.) The right to a peer jury is effectively diminished in any case if the overzealous prosecutor is able by affirmative means to systematically exclude available and otherwise competent blacks from the jury solely because they are blacks. Cf. Peters v. Kiff (1972), 407 U.S. 493, 504-05, 33 L.Ed.2d 83, 94-95, 92 S.Ct. 2163, 2169-70.
We next look to the role of the court itself in a criminal trial because the significance of a criminal trial goes beyond the truth or falsity of the accusation. A criminal trial is in reality a public event. (Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 593, 65 L.Ed.2d 973, 1000, 100 S.Ct. 2814, 2826 (Brennan, J., concurring).) The trial includes the ceremonial or ritual aspect, the appearance of justice, and the role of a free people in passing judgment. Thus, the whole society is represented at a criminal trial. That is why, with rare exception, criminal trials must be open to the public. See Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 581, 65 L.Ed.2d 973, 992, 100 S.Ct. 2814, 2830; see also Taylor, 419 U.S. 522, 530, 42 L.Ed.2d 690, 698, 95 S.Ct. 692, 697; Younger, Unlawful Peremptory Challenges, 7 A.B.A.J. Litigation 23, 24 (1980).
If we are going to insist, and we must, that criminal trials be open to the public, we must be ever solicitous that those in attendance witness a system of justice in its truest sense and not a system of de facto racial discrimination. In this regard, we, as judges and defenders of our legal system, can ill afford to delude ourselves into believing that those in attendance at a criminal trial do not appreciate the difference between trial tactics used primarily to seek justice and racially discriminatory trial tactics used solely to convict. When by affirmative means blacks are systematically excluded from serving on a petit jury solely because they are blacks, the harm is not restricted to the defendant. There is also harm to the jury system, to the excluded jurors, to the community at large, to the law as an institution, and to the democratic ideal reflected in the processes of our courts>. Cf. Ballard v. United States (1946), 329 U.S. 187, 195, 91 L.Ed. 181, 186, 67 S.Ct. 261, 265.
Thus, we must bear in mind that a criminal trial is more than merely a means of meting justice. The trial is also an avenue for fulfilling the notion deeply rooted in the common law that "justice must satisfy the appearance of justice." (Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 594, 65 L.Ed.2d 973, 1001, 100 S.Ct. 2814, 2827 (Brennan, J., concurring), quoting Levine v. United States (1960), 362 U.S. 610, 616, 4 L.Ed.2d 989, 995, 80 S.Ct. 1038, 1042.) Plainly, the appearance of justice is not fulfilled if the trial court acquiesces in, condones or fails to preclude attempts by the prosecuting attorney to exclude blacks from the jury solely because they are blacks. The trial court cannot sit idly by in such instances, because it has a duty to see that the ...