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05/01/87 the People of the State of v. Murray Hooper

May 1, 1987





506 N.E.2d 1305, 118 Ill. 2d 244, 107 Ill. Dec. 250 1987.IL.576


JUSTICE RYAN specially Concurring. WARD and MORAN, JJ., join in this special concurrence. CHIEF JUSTICE CLARK, Dissenting. JUSTICE SIMON joins in this Dissent. JUSTICE SIMON, also Dissenting. CHIEF JUSTICE CLARK joins in this Dissent.


Pursuant to this court's supervisory authority and on the court's own motion, this court retains jurisdiction of this cause and directs the circuit court of Cook County to conduct an expedited hearing to permit the defendant to present evidence to substantiate his claim of unconstitutional discrimination in the exercise of peremptory challenges. If the court finds that a prima facie showing of such discrimination has been made, the court is directed to determine whether or not there is a neutral explanation by the State for the exercise of the questioned peremptory challenges. The circuit court is directed to conduct this hearing in accordance with Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, as applied to cases on direct appeal by Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708. The court shall make appropriate findings of fact and Conclusions of law and file those findings and Conclusions with the clerk of this court within 63 days of this order together with the record of the proceedings.


Order entered. Concurring

JUSTICE RYAN specially Concurring:

I join in the supervisory order entered herein; however, by reason of the comments of my Dissenting colleagues, I am compelled to express in writing the reasons for my concurrence with the supervisory order remanding to the trial court the cases involving a Batson issue (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712).

At the trial of the cases which we now consider, the issue of the misuse of peremptory challenges to exclude blacks was considered under the law as announced in Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824. Under that law, of course, the burden the defendant had to meet to establish a prima facie case of discriminatory exclusion of blacks was much different, and much more difficult for the defendant to meet, than it is under Batson. I believe it would be manifestly unfair to a defendant if this court were to make a determination from a record made under Swain law whether or not a prima facie case has been established under Batson. The focus and the burden of the defendant's proof and the elements to be proved are different now than they were under Swain. If the defendant can present evidence of the discriminatory use of peremptory challenges under Batson law which was not disclosed by the record made under Swain guidelines, he should have an opportunity to present such evidence for the trial court's consideration. As the Chief Justice suggests in his Dissent, it may well be that on remand the trial court will have to decide the prima facie question from a cold record, as this court could do now. But that will not necessarily be true in all cases. We should not preclude the defendant from making such an additional showing by deciding now in this court whether or not a prima facie case of discriminatory use of peremptory challenges has been made. I, too, am concerned with judicial economy. I, too, believe that "the

Contrary to Justice Simon's Dissent, People v. Mack (1985), 105 Ill. 2d 103, does not characterize "claims of systematic racially discriminatory jury selection as 'emotional arguments.'" I authored the Mack opinion and find the language of the Dissent to which I refer to be an unfair and incorrect construction of the language used in Mack. That opinion states:

"Regardless of the many emotional arguments on this question that have been raised in this court . . .." (105 Ill. 2d 103, 122.)

The question referred to in the quoted language is the systematic exclusion of blacks through the use of peremptory challenges. The quoted language simply says that many emotional arguments on this question have been raised. That is a far cry from characterizing the question itself, that is, racially discriminatory jury selection, as emotional arguments. Emotional arguments can be made for or against almost any subject, but that does not mean that the subject itself should be characterized as an emotional argument. Since I authored Mack, the manner in which the reference to that opinion has been inserted in Justice Simon's Dissent makes it apparent that the purpose for the reference to Mack, and for the incorrect construction of that language, is to detract from the sincerity of my profession of good intentions in this concurrence.

It is possible that in some cases the record before us made under Swain guidelines may appear to clearly disclose a prima facie case of discriminatory use of peremptory challenges. In People v. McDonald, Nos. 63204, 63240 cons., as Justice Simon's Dissent indicates, the prosecutor challenged 16 eligible black jurors. As flagrant as this example may appear, the defendant should be permitted to bolster this showing of apparent discrimination with whatever other evidence he may have which, under Batson, is relevant. If, following a hearing in the trial court, this example is as flagrant as it appears to be, it is doubtful that the prima facie issue created by our supervisory order will cast the severe burden my Dissenting colleagues fear on the judicial system at either the trial or appellate level.

We cannot, however, become involved in a numbers game. At what point and under what circumstances should this court draw an arbitrary line based on the number of blacks peremptorily excused? What if 16 blacks, as in People v. McDonald, were peremptorily excluded but 5 blacks were seated on the jury? Can we say from a cold record disclosing these numbers alone that a prima facie discriminatory use of challenges has been established? Or what if five, four, three or two blacks were peremptorily challenged? Do those numbers alone disclose a prima facie case? Or suppose that three blacks were peremptorily challenged and that three blacks were seated as jurors, does this disclose a prima facie case of discrimination? Consider further that the three blacks who were seated as jurors under the last example were seated only after the State had exhausted its peremptory challenges. We must avoid arbitrarily deciding the delicate question we now consider solely from the number of blacks peremptorily excused as disclosed by the record. This is in accord with the holding of the New York court in People v. Thompson (App. Div. 1981), 434 N.Y.S.2d 739, which refused to inquire into the reasons for

"a prosecutor's use of peremptory challenges merely because the prosecutor has used a particular number of his peremptory challenges to exclude black potential jurors, for it may well be that the prosecutor's peremptory challenges were properly exercised, but for reasons that are not as readily apparent to those who were not in the position of the Judge who attended the voir dire. Thus, while exclusion of a significant number of black potential jurors will usually be part of the case of a defendant who seeks to have the trial court inquire into the prosecutor's use of peremptory challenges based upon alleged exclusion of blacks, such exclusion will be ...

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