Appeal from the Circuit Court of Cook County; the Hon. Howard
M. Miller, Judge, presiding.
JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
A jury found defendant, Steven Gilliard, guilty of robbery. Defendant, who is black, contends that the trial court erred in denying his motion for a mistrial because the prosecutor systematically used peremptory challenges during the voir dire examination of the prospective jurors to exclude blacks from the jury solely because they were blacks. 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 conviction and remand the case for a new trial.
The record demonstrates that the procedure for the selection of the jury began with the trial judge interrogating the prospective jurors. The attorneys then interrogated the prospective jurors in panels of four. The first panel contained one black and three whites. The State exercised a peremptory challenge to excuse the black. When another black was called to fill the panel, she, too, was excused by the State by the use of a peremptory challenge. When accepted, the first panel of jurors did not contain any blacks. The second panel contained no blacks at any time. The third panel contained three white prospective jurors and one black prospective juror. The State exercised a peremptory challenge to excuse the black, and the black was replaced by a white. When accepted, the third panel of jurors did not contain any blacks. One of the two alternate jurors who was selected was black. However, the trial court noted in the record that by that time the State had exercised all of its peremptory challenges, and the State "really had no choice" but to accept the black as an alternate juror. Defendant did not exclude any black prospective jurors.
After the jury was selected, defendant moved for a mistrial on the basis that the State had systematically excluded all the black prospective jurors from the jury, in violation of the rights guaranteed him under the Constitution of the United States. The jury cards were made part of the record in conjunction with the motion. The prosecutor objected to the motion, and as his reasons for opposing the motion, he stated that defendant did not prove why the State excluded the black prospective jurors and that the State did not have to give any reasons for excluding the black prospective jurors. The prosecutor then cited and discussed Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, in which the Supreme Court held that the systematic striking of all blacks from the jury by the State in a single case did not violate the equal protection standard of the fourteenth amendment of the United States Constitution. The following statements were then made:
"[The prosecutor]: The People do not have to tell this Court why they excluded anyone from that jury. It [Swain] further says it's without inquiry and without being subject to Court's control. The whole basis and fact of the word `peremptory challenge,' allows the State to exclude persons without telling you why.
We would further like to call the Court's attention to People versus Fleming —
The court: Because you cited sufficient cases for appeal, there is no legal basis for a mistrial, Mr. [defense counsel].
[The prosecutor]: Could we do one more case?
The court: I have the jury waiting.
[The prosecutor]: If they appeal it —
The court: They can't appeal it because the law is to the contrary, legally.
The legal basis, the cases, I have read them, I have read these that you have read plus others, but, however, I will say this:
I think that the attitude — I am not speaking of you individuals, I am talking about the attitude of the State's Attorney's Office, period. I find this is morally reprehensible and in my opinion there is a purposeful discrimination, in my opinion. It's an invidious discrimination. It's a bad policy that they have and I find the State's Attorney's attitude and policies towards removal of Black people from the jury is, to me, is personally offensive not only as a Black person, but as a Black lawyer and a Black judge.
Now, the first panel we selected, the State exercised three challenges, two of whom were Black ladies and the second panel, there were no Blacks in that group, so there was one challenge to one White person a Mr. Finney, and the ...