People v. Blackwell

JUSTICE MILLER, dissenting:

I continue to believe that the defendant has waived any contention that the jury in the present case was selected in violation of the rule announced in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 , 128 L. Ed. 2d 89 , 114 S. Ct. 1419 (1994). In a prior opinion, a majority of this court determined that the defendant had established a prima facie case of sex discrimination in the selection of Ms jury, and the court remanded the cause so that the prosecution would have the opportunity to advance neutral reasons for its challenges to the jurors in question. People v. Blackwell, 164 Ill. 2d 67 (1995). As I noted at that time, the majority was ignoring the rule we have previously enforced requiring that a defendant make a proper, timely objection to the jury selection procedures employed at trial. Until the decision in this case, our decisions had clearly and consistently held that a defendant’s failure to raise a Baison-type claim (Batson v. Kentucky, 476 U.S. 79 , 90 L. Ed. 2d 69 , 106 S. Ct. 1712 (1986)) in the trial court would result in the waiver of that contention. People v. Fair, 159 Ill. 2d 51, 71 (1994); People v. Evans, 125 Ill. 2d 50, 61-62 (1988).

People v. Pecor, 153 Ill. 2d 109 (1992), is instructive. The defendant in that case argued at trial that the jury was being selected in violation of Batson. The trial judge rejected the defendant’s contention, believing that the defendant, who was white, lacked standing to challenge the exclusion of black members of the venire. While the defendant’s appeal was pending, the United States Supreme Court decided Powers v. Ohio, 499 U.S. 400 , 113 L. Ed. 2d 411 , 111 S. Ct. 1364 (1991), which eliminated any requirement that the defendant and the excluded venire members be of the same racial group. From a review of the record, the Pecor court concluded that the defendant had adequately preserved an objection to the prosecution’s alleged exclusion of black members of the venire. Responding to the State’s concern that a decision in favor of the defendant in that case would mean that any defendant would be allowed to raise a similar challenge to the selection of his jury, no matter how untimely the objection, this court counseled that "defendants who made no objection whatsoever cannot now simply create claims and go back to the trial court and attempt to prove a prima facie case of discrimination.” Pecor, 153 Ill. 2d at 126 .

Despite our admonition in Pecor, that is exactly what the present defendant has been allowed to do. At trial in the present case, the defendant did not object to the prosecutor’s exercise of peremptory challenges against female members of the venire. The only Batson-type claim raised by the defense involved the State’s alleged exclusion of several black potential jurors on the basis of race. Nonetheless, the majority has resolved to address the merits of the defendant’s belated contention that the prosecution improperly challenged female members of the venire. The majority’s decision to entertain the defendant’s tardy claim placed the State in the unenviable position of attempting to reconstruct, long after the fact, the particular reasons that led the prosecution team to prefer one prospective juror over another. The majority notes a number of discrepancies between the State’s explanations for its exclusion of certain jurors and the record from the original proceedings; the variances exemplify the difficulties in determining, at this late date, the reasons that motivated the prosecution’s exercise of its peremptory challenges when the strikes are attacked on a ground wholly different from the one asserted by the defendant at trial.

Because I believe that the defendant has waived any challenge to the State’s alleged exclusion of women from the jury, I would consider in this appeal the defendant’s remaining allegations of error in the guilt-innocence phase of the proceedings.

CHIEF JUSTICE BILANDIC joins in this dissent.