APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
509 N.E.2d 782, 156 Ill. App. 3d 560, 109 Ill. Dec. 121 1987.IL.844
Appeal from the Circuit Court of Will County; the Hon. Herman S. Haase, Judge, presiding.
PRESIDING JUSTICE BARRY delivered the opinion of the court. STOUDER and HEIPLE, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY
Defendant Xavier D. Williams was convicted in 1984 for the felony murder of a cab driver in Joliet, Illinois, and was sentenced to serve a term of 35 years in the Illinois Department of Corrections. On appeal this court affirmed his conviction in People v. Williams (1985), 136 Ill. App. 3d 126, 483 N.E.2d 306, and the Illinois Supreme Court denied leave to appeal. Williams then filed a petition for writ of certiorari in the United States Supreme Court, whereupon the Supreme Court granted certiorari, vacated the conviction, and remanded the cause to this court for further consideration in light of Griffith v. Kentucky (1987), 479 U.S. , 93 L. Ed. 2d 649, 107 S. Ct. 708.
The issue presented by this case is whether the prosecutor's use of peremptory challenges to exclude three black persons from the jury constituted purposeful discrimination in violation of defendant's constitutional right to equal protection of the law under the sixth and fourteenth amendments of the United States Constitution. In the trial court, defendant objected to the exclusion of the black panel members. Counsel for defendant stated:
"Quite simply, Judge, when we have a total of fifty jurors to choose from, when we have two black defendants and a white victim, out of the fifty jurors there are in fact only four blacks and three of them are excluded automatically by the State.
I think that, in and of itself, shows a systematic exclusion."
The trial Judge then stated that most of the criminal cases tried in his court have had black jurors on the jury and that he had seen no evidence of any systematic exclusion of jurors.
When defendant Williams and his co-defendant James Walker raised the issue of systematic exclusion of blacks from the jury in their direct appeals to this court, we followed the rule of People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202, and Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, "that a constitutional issue arises only where there has been a systematic exclusion on the basis of race by peremptory challenges in case after case." People v. Walker 1985), 136 Ill. App. 3d 177, 181, 483 N.E.2d 301; People v. Williams 1985), 136 Ill. App. 3d 126, 483 N.E.2d 306.
The United States Supreme Court has now repudiated the rule which required a pattern of systematic exclusion "in case after case" before a defendant could claim a violation of the constitutional right to a jury drawn from a cross-section of the community. Swain v. Alabama was explicitly overruled in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, where the Supreme Court held that a defendant in a State criminal trial could establish a prima facie case of purposeful racial discrimination based on the prosecution's use of peremptory challenges to strike members of the defendant's race from the jury venire. The court also held that once the defendant had made a prima facie showing of purposeful discrimination, the burden shifts to the State to come forward with a neutral explanation for those challenges. This new rule for the conduct of criminal prosecutions is to be applied retroactively to all State and Federal cases pending on direct review or not yet final at the time of the decision in Batson v. Kentucky. Griffith v. Kentucky (1987), 479 U.S. , 93 L. Ed. 2d 649, 107 S. Ct. 708.
"defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida (supra)
, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those ...