declines to interfere with use of peremptory challenges
How later courts described this case
- declines to interfere with use of peremptory challenges
Written by the judges who cited it.
The opinion
JUSTICE JOHNSON, dissenting:
I respectfully dissent and would base my reversal on the peremptory challenge issue.
The majority discusses People v. Wheeler (1978), 22 Cal. 3d 258 , 583 P.2d 748 , 148 Cal. Rptr. 890 , but refuses to apply the procedures employed by Wheeler. They maintain that Swain v. Alabama (1965), 380 U.S. 202 , 13 L. Ed. 2d 759 , 85 S. Ct. 824 , is controlling. The majority cites People v. King (1973), 54 Ill. 2d 291 , 296 N.E.2d 731 , as standing for this proposition. However, King does not suggest or maintain that Illinois cases dealing with the issue of peremptory challenges are to be governed by Swain exclusively. Further, the majority summarily dismisses the Wheeler decision by urging that the Constitution of the State of Illinois does not direct or require us to go beyond the holding of Swain.
I cannot agree with this analysis. In order to establish a prima facie case under Swain, the defendant must show a systematic striking of blacks from the selection of juries over a period of time. In practice, this task has proved to be insurmountable for the defendant. (See Commonwealth v. Soares (1979), 377 Mass. 461 , 387 N.E.2d 499 .) Consequently, there have been few, if any, cases that have overcome the Swains systematic exclusion test. The Wheeler court recognized the inadequacies of Swain and refused to apply the systematic exclusion test. I agree with the procedures employed by Wheeler, and I would use those procedures in this case. The record reveals that the prosecutor struck all six black jurors from the panel without a satisfactory explanation. Under Wheeler, once improper use of the peremptory challenge is alleged, as in this case, the burden shifts to the prosecution to rebut or explain. Since the prosecutor offered no satisfactory explanation, the State failed to meet its burden; therefore, a new jury should have been selected.
As was stated in People v. Smith (1980), 91 Ill. App. 3d 523, 532 , 414 N.E.2d 1117, 1124 , “[w]e abhor and condemn the practice of the use of the peremptory challenge to strike all blacks from a jury.” Smith also indicated that where purposeful exclusion has been shown, as in this case, reversal would be appropriate. Defendant Lavinder has established a prima facie case under Wheeler; for me, this is sufficient for reversal.