# Petition — WILLIAMS v. ILLINOIS (No. 83-5785) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1701%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text RECEHVED- No. NOV 21 1883 IN THE OFFICE OF THE CLERK SUPREME COURT, U.S. . SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 HERNANDO WILLIAMS, Petitioner, -vVs- PEOPLE OF THE STATE OF ILLINOIS, Respondent. PETITION FOR WRIT OF CERTIORARI TO —“THE SUPREME COURT OF ILLINOIS 1 STEVEN CLARK Deputy Defender KENNETH L. JONES Assistant Appellate Defender Office of the State Appellate Defender 109 North Dearborn Street 8th Floor Chicago, Illinois 60602 (312) 793-5472 COUNSEL FOR PETITIONER Of Counsel: Sheldon . irt Nagelberg QUESTION PRESENTED FOR REVIEW 1. Whether a capital defendant's right to a jury, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution is violated by the prosecution's use of peremptory challenges to exclude racial minorities. 2. Whether State evidentiary rules of waiver can properly be applied to a capital defendant's right to a jury selected from a cross-section of the community as required by the Sixth and Fourteenth Amendment under the holding in Witherspoon v. Illinois, 391 U.S. 510 (1968). 3. Whether a capital sentencing statute that vests unreviewable discretion in the prosecution following conviction, offers the sentencing authority no meaningful standards and where the state supreme court has explicitly rejected comparison review is compatible with the due process clause of the Fourteenth Amendment and the prohibition against cruel and unusual punishment. 4, Whether the inconsistent application of a statutory aggravating factor which potentially renders all murders capital offenses deprived Hernando Williams of his rights under the Sixth and Fourteenth Amendments. 5. Whether the record in this case establishes that petitioner's pleas of guilty do not comport with due process where at no time during the plea proceedings was petitioner informed that his pleas would subject him to the same penalties he would receive if he were tried and convicted; and no clear affirmative notice was given by the prosecution that the death penalty would be sought if Petitioner plead guiltv. TABLE OF CONTENTS Questions Presented for Review.......... A Pe Ae Ae yee a6 i Whether a capital defendant's right to a jury, as guaranteed by a cross-section of the community as guaranteed by the Sixth end Fourteenth Amendments to the United States Constitution is violated by the prosecution's use of peremptory challenges to exclude racial minorities. Whether State evidentiary rules of waiver can properly be applied to a capital deferdant's right to a jury selected from a cross-section of the community as required by the Sixth and Fourteenth Amendment under the holding in Witherspoon v. Illinois, 391 U.S. 510 (1968). Whether a capital sentencing statute that vests unreviewable discretion in the prosecution following conviction, provides no requirement for pre-trial notice, offers the sentencing authority ne meaningful standards and where the state supreme court has explicitly rejected comparison review is compatible with the due process clause of the Fourteenth Amendment and the prohibition against cruel and unusual punishment. Whether the inconsistent application of a statutory aggravating factor which potentially renders ali murders capital offenses deprived Hernando Williams of his rights under the Eight and Fourteenth Amendments. Whether the record in this case establishes that petitioner's pleas of guilty do not comport with cue process where at no time during the plea proceedings vas petitioner informed that his pleas would subject him to the same penalties he would receive if he were tried and convicted; and no clear affirmative notice was given by the prosecution that the death penalty would be sought if Petitioner plead guilty. EE SS Ee ee i a ee eb ; , & Table of Authorities.......... Se re Vv I EE re ye ee ] Opinions Below.......... ee PTT TUTTLE ReTETETe soee 1 N Statement of Jurisdiction........ ee ek a eb bs ee ree ii Constitutional ProvisionemInvol ved... .cccccccccccccccecce Pho Staten: 65 Cae GOOG ss. osc cwee be eae eee eee eee 3 The Manner in Which the Federal Constitutional Claim We as 6 5b wk Oe Re ORES ee eee eee eee & Reasons for Allowance of the Writ I. HERNANDO WILLIAMS' RIGHT TO A JURY DRAWN FROM CROSS-SECTION OF THE COMMUNITY AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S USE OF PEREMPTORY CHALLENGES TO EXCLUDE RACIAL MINORITIES FROM THE JURY WHICH JLTIMATELY IMPOSED THE DEATH PENALTY ON MR. WILLIAMS. ALTERNATIVELY IN LIGHT OF THE ON- GOING HISTORY OF RACIALLY MOTIVATED USE BY PROSECUTORS IN COOK COUNTY OR PEREMPTORY CHALLENGES, AS Rees .see BY AT LEAST ONE ILLINOIS SUPREME COURT JUSTICE AND ONE DIVISION OF THE STATE APPELLATE COURT, THIS CAUSE SHOULD BE REMANDED TO THE STATE TRIAL COURT FOR A EVIDENTIARY HEARING IN LINE WITH THE HOLDIN IN SWAIN V. ALABAMA, 380 U.S. 202 (1965) A. HERNANDO WILLIAMS' RIGHT TO BE TRIED A JURY DRAWN FROM A CROSS-SECTION OF THE a gern WAS VIOLATED BY TEE PROSECUTOR'S TBERATF. EXCLUSION OF AJ.L BLACKS FROM THE We mr 6 5 rq qj Cc = +c \o B. WHERE AT LEAST ONE JUSTICE OF THE ILLINOIS SUPREME COURT AND ONE DIVISION OF THE ILLINOIS APPELLATE COURT HAVE RECOGNIZED THE EXISTENCE OF "AN OPEN SECRET" THAT PROSECUTORS IN CHICAGO AND ELSEWHERE HAVE HISTORICALLY AND SYSMATICALLY USED PERElMPTORY CHALLE‘SGES TO REMOVE ALI OR ALL BUT TOKEN BLACKS FROM JURIES IN CRIMINAL CASES WITH BLACK DEFENDANTS, PETITIONER WILLIAMS IS ENTITLED TO A HEARING ON THIS ISSUE UNDER THE GUIDELINES OF SWAIN V. ALABAMA, 380 U.S. 202 (1965)......... 12 II. HERNANDO WILLAIMS' SIXTF AMENDMENT RIGHT TO A JURY DRAW! FROM A CROSS-SECTION OF THE COMMUNITY WAS VIOLATED BY THE EXCLUSION OF JURORS WITH SCRUPLES AGAINST THE DEANT PENALTY. IN AFFIRMING THE SENTENCES OF DEATH IMPOSED UPON WILLIAMS THE ILLINOIS SUPREME COURT ERRED BY MISAPPLYING STATE EVIDENTIARY WAIVER RULES TO A SIXTE AMENDMENT ISSUE.........cc000. 17 Ill. IV. Conclusion Appendix A Opinion of the Illinois Supreme Court THE ILLINOIS DEATH ACT BOTH ON ITS FACE AND AS APPLIED AGAINST HERNANDO WILLIAMS IS VIOLATIVE OF TRE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. .......ccccccccesees 22 A. THE ILLINOIS DEATH ACT, BY VESTING TOTAL DISCRETION IN THE PROSECUTORS AS TO WHO? SHALL BE SUBJECT TO THE DEATH PENALTY ENSURES THAT CAPITAL PUNISHMENT WILL BE INFLICTED IN A FREAKISH MANNER IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION............ 22 B. THE ILLINOIS DEATH ACT VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENT IN THAT IT PROVIDES NO DEFINED LIMITS ON THE FACTORS WHICH MAY BE CONSIDERED BY THE SENTENCING AUTHORITY, NOR DOES IT ALLOCATE A BURDEN OF PROOF AS TO THE ULTIMATE ISSUE.......cccccccccccees 25 C. THE ILLINOIS DEATH SENTENCING SCHEME FAILS TO PROVIDE ADEQUATE COMPARATIVE REVIEW PROCEDURES TO INSURE THAT THE DEATH PENALTY IS NOT IMPOSED IN AN ARBITRARY OR DISPRO- PORTIONATE MANNER... ..ccccccccccccsccceveecs 28 HERNANDO WILLIAMS’ RIGHT TO DUF PROVESS AND TO BE PROTECTED FROM CRUEL AND UNUSUAL PUNISHMENT WERE VIOLATED BY THE APPLICATION OF AN AGGRAVATING FACTOR THAT POTENTIALLY RENDERS ALL HOMICIDES CAPITAL GREBMOEE soccer ccccccccccesseseeesassesveseseses 30 SINCE ONLY THE PROSFCUTORS COULD DETERMINE WHETHER OR NOT THE DEATH PENALTY WOULD BE SOUGHT AGAINST HERNANDO WILLIAMS FIS RIGHTS TO DUE PROCESS WERE VIOLATED WHEN THE COURT ACCEPTED HIS PLEA OR GUILTY WITHOUT INFORMING WILLIAMS THAT EVEN A CONVICTION BY PLEA OF GUILTY WOULD SUBJECT HIM TO THE STATE'S ATTORNEY DISCRETIONARY ELECTION TO SEEK THF DEATH yi hs Sere rrrrrrrr er TT rererererrrer yr Tre 32 Appendix B. Order Denying Rehearing TABLE OF AUTHORITIES CASES Bdome vw. Tanase, S666 U.8. 38 (19SG) .cccevsecsvecccsess Barclay v. Florida, U.S. 77 L. Ed. 2d Po > Me. 5) PPR eer on ee) ee Fe Bass v. Estelle, 696 F. 2d 1154 (Sth Cir., 1983).... Bovkin v. Alabama, 395 U.S. 238 (1969).......ccecee. Burns v. Estelle, 592 F. 2d 1297 (5th Cir., 1979)... Burns v. State, 556 S.W. 2d 270 (Tx. Crim. App. Brady v. United States, 397 US. 74? ei gt } Pee California v. Lanphear, 449 U.S. 810 (1980)......... Celifornia v. Velasquez, 448 U.S. 903 (1980)........ Commonwealth v. Sources, 377 Mass. 593, 387 N.E. We) ee, rer eer eee ee ee ee Davis v. Georgia, 492 U.S. 122 (1977). .ccceccccccces Furman v. Georgia, 408 U.S. 238 (1972).............. Granviel v. Estelle, 655 F. 2d 673 (5th Cir., 1981). Gilliard v. Mississippi, U.S. » 34 Cr. L SERS CAPES Sb evereccennsaceceeccteusvsessecsacene Godfrey v. Georgia, 446 U.S. 420, (1981)............ Grege v. Georgia, 428 U.S. 153 (1976)............... Hardy v. State, 2456, 272, 264 N.E. 2d 209 (1980)... Harris v. Pulley, 692 F. 2d 1189 (9th Cir., 1982) Cert granted sub nom Pulloy v. Harris, e.. CEOEOGD CEOWSE coh ec avec nevseceseesesseseevence In re Winship, 397 U.S. 358 (1970)......cceeeeeeeeee May v. State, 618 S.W. 2d 33 (Tx. Crim. App. 1980).. May v. Texas, 454 U.8. 959 (C1I9GL) .cccccccccccccecees McCorquodale v. Balkcom, 705 P. 2d 1553 (llth PAGE 17,19,20 26 1] 20 224at ae 20 11 3] ye 26 29 26 19 20 DENS y BUMP P Son seRR Sore ceveseesceseseisenesesseneos 20 McCray v. New York, U.S. , 33 Lr. 4067 REPO P eee eh eee se eser ses eebeceseeenseeseceeeeeeesens 10 People ex rel. Carey v. Cousins, 77 Ill. 2d 531, 397 ee Be OEP CEPT P Perec cccboscccccvcsccicvessosevere ae gas People v. Brontes, (Il11. App. 4th Dist., #16274).... 24 People v. Brownell, 79 Ill. 2d 508, 404 N.F. 2d ret Pc crease deuhedetaesk4sdaeecne ees 28,29,30,31 People v. Brownell, Tll. 2d _—, 449 N.E. 2d STB tate. cn pce ee Sense ek Skt es 652060062 28,29 People v. Cole, 54 I11l. 2d 401, 298 N.E. 2d 705 DEUCE SARAGGCOR POSED DEb SCO ORCS ESR OCe GED ESO oeO ER ECS 21 Feope v. Davis, 95 Ill. 2¢ 1, 447 N.E. 24 353 People v. Eddington, 77 Ill. 2d 41, 394 N.E. 2d Eb ee ee eke smabeaee-eu’ 31 People v. Gosberry, Ill. 2¢ » 449 N.E. 2d ETS DRT SE WEG 466 06-0844.206 600% reTeTUTE UC ETT Tere 15 People v. Groth, (Ciz Crt Sangamon Co. #70-CF-702).. 24 People v. Hicks, (Ill. App. 4th Dist., #16674)...... 24 People v. Kirkpatrick, 70 Ill. App. 3d 166, 387 N.E. 7 1284 CTS 78) PRARECEHRSUESEED SOS HOODOO ESCO OSES 24 People v. Lanphear, 2) D Pr ee People v. LaPointe, F988 (LISI) oc ccee 26 Cai. 3d 814, 608 P. 2d 689 88 Ill. 2d 482, 431 N.E. 3d People v. LeCrone, Ill. App. ; N.E. COEM DISS.» LIST) accccccccvescscccccvessscsccecese People v. Lewis, (I11. App. 4th Dist., #16273)...... People v. Lewis, 88 Ill. 2d 129, 430 N.E. 2d 1346 4. | > PPP Pe eeTTEPPET Terror TeLireelrerere re People v. Nesbit, (Cir., Crt, Sangamon - Me 2: ree ee errr eee ee ee ee People v. Payne, 106 Ill. App. 3d 1034 435 N.E. 2d al EGFeeeeeeSoSSeSesseesSSSSesessessSeeeseeeeseseser People v. Peeples, (Ill. App. 4th Dist., #16759).... 24 People v. Szabo, 94 Ill. 2d 327 447 N.E. 2d 193 PEELE 6 6a 40.co6 6s 0000040 6666's 666 06 6460 66R Ebb E002 6-8 19,20 26 Cal. 3d 425, 660 P. 2¢ SER OES6O4 04656040 6646004 000 00500400054 19 People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 CUE Wa 6006 bb b4OS0.066 666 5506060004 2 OTRO OAKES 6808 11 People v. Withers, _ Ill. App. 3d __, 450 N.E. Dl REE aA Ek 0.04% 6668 8640002 46.660566006 6 OSCR ROBES 1] State v. Crespin, 94 N.M. 486, 612 P. 2d 716 (1980). 1] State v. Wigglesworth, 18 Ohio St. 2d i7i, 248 Y. Tec peUEGREES OES ON ER EOC EH CESAR EGNOES 19,20 Swain v. Alabama, 380 U.S. 202 (1965)........... 30. 44,82 s40c0O0a7 Tavior v. Lowtiesionsa, 619 U.8. 322 Cl97S) «ccccccceces 10 Town of Cicero v. Industrial Commission, 404 I1l. SOl sy GP BuBd 2 SHO CEPSEP ce ccceccesacecccvecseanes 18 United States v. Carter, 528 F. 2¢ 844 (8th Cir., LEtSE GE Gs GEE GES UVsbc POhe cess eescsccecesac's 1] United States v. Childres, F. 2d , ad Cri Cee CAPET bute b ChE eC RENE Ob 06600 5040526008 20 6a-08 11 Wainwright v. Sykes, 433 U.S. 72 (1978)............. 20 Weteus ©, Alebame, 369 U.8. FSS CiPOl ec ccsssssececes se) Wigglesworth v. Ohic, 403 U.S. 947 (1971)........... 19,10,11 Witherspoon v. Illinois, 391 U.S. 510 (1968)........ 17,18,10,21 Woodson v. North Carolina, 428 U.S. 280 (1976)...... 27 Zant v. stephans, U.S. 77 L. Ed. 2d 235 (1983)...... 26 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 HERNANDO WILLIAMS, Petitioner, -VS- PEOPLE OF THE STATF OF ILLINOIS, Respondent. INTRODUCT IO? TO THE CHIEF JUSTICES AND ASSOCIATES JUSTICES OF THE SUPREME COURT OF THE UNITED STATES : Mav It Please The Court: Hernando Williams, petitioner, respectfully prays that a writ of certiorari issue to review the decision of the Supreme Court of Illinois affirming his convictions and the sentence of death following his pleas of guilty to murder, armed robbery, rape and aggravated kidnapping. OPINIONS BELOW The opinion of the Illinois Supreme Court is (unreported). A copy of the opinion appears as Appendix A. The Order Denying Rehearing is in Appendix B. STATEMENT OF JURISDICTION This court's jurisdiction is invoked pursuant to 28 U.S.C. 1257(3). The opinion of the Supreme Court of Illinois was filed on May 27, 1983. A timely petition for rehearing was filed and subsequently denied on September 30, 1983. This petition is being filed within sixty days of the denial of the rehearing. CONSTITUTIONAL PROVISIONS INVOLVED United States Constitution Article 6, Clause 2 This constitution, and the law of the United States which shall be made in pursuant thereof, and of all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. AMENDMENT VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been cormitted, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. AMENDMENT VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. AMENDMENT XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State itn shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of laws. STATEMENT OF THE CASE On April 3, 1978, Petitioner, Hernando Williams was charged by indictment with murder, armed robbery, rape and aggravated kidnapping in the Circuit Court of Cook County, Illinois. On July 20, 1978 the defense filed a motion asking the State to disclose whether or not they intended to seek the death penalty and if so what statutory aggravating factors would be relied upon. (R. 146)” The motion for disclosure was entered and continued to August 11, 1978 at which time the state filed a written answer asserting the position that under the Illinois Death Act they were not required to disclose prior to trial an intent to seek the death penalty. (R. 153) On March 1, 1979 a motion challenging the Constitutionality of the Illinois Death Act was filed. On August 29th argument was held on this motion. (R. 1018-1027) On October 9, 1979 Hernando Williams entered pleas of guilty to all the counts of the indictment. (R. 88) Prior to formally accepting the plea of guilty, the court advised Williams as to the consequences of his plea, stating: I must advise vou further that you can be tried before this court or before a jury. If you are found guilty of murder, under the circumstances of which case the death penalty could be imposed. (R) References will be to the pages in the transcript prior to Mr. Williams’ plea of guilty. (H) references will be to the report of proceedings starting with the plea and including the sentencing hearing. oSe I must also advise you in addition to the possibility of the death penalty under the Code as it exists in the State of Illinois, is a further provision for the imposition of sentence for the crime of murder wherein it is provided the minimum term to be imposed shall be not less than 20 years not more than 40 years. If the Court finds that the murder again was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or if any of the aggravating factors listed in the Code proper were found to be present, the Court may sentence the defendant to a term of natural life imprisonment. (H. 10-13) Following the court's acceptance of Mr. Williams’ pleas, the prosecution moved that the case be recessed, since no decision had been made as to whether or not the state would seek the death penalty and that such decision would have to be cleared by the trial prosecutors’ “superiors” (F. 63) When the case was recalled that afternoon the state requested a death penalty hearing. (H. 68-69) The case was continued to October 15, 1979. (H. 75) On that date, Hernando Williams, a black man, elected a jurv for his -entencing authority. {H. 93) The court denied the previously filed defense defense motion challenging the constitutionally of the Death Act. (H. 99) Jury selection commenced on October 16, 1979. (H. 116, 153) Of the 128 prospective jurors examined during voir dire, 28 were black. Of these two were excused for cause on motion of the defense. One had already formed the opinion that Williams should be executed and the other took part in the investigation of the case. A total of 15 black jurors were excused for cause on the State's motion. (H. 6341) Elever of the 20 peremptory challenges used by the State were directed at blacks, 8 during the selection of the actual jury, and 3 to remove all blacks alternates. During the voir dire examinations the defense identified each juror by race and when the State's pattern of racial -G= exclusion became apparent, brought the matter to the court's attention. (H. 2005) The issue was formally raised in a written motion to dismiss the jury (H. 6341) which was denied after argument. (H. 3170) The State offered no justification and the court failed to require any justification for the prosecution's use of peremptory challenres against blacks. During jury selection, the state moved to excuse for cause numerous jurors who voiced scruples against the death penalty. Among these was Delores Hudson whose relevant voir dire examination was excerpted in the Illinois Supreme Court's opinion: Q. [D]Jo you have any questions you have to ask me, at this point, about the procedure about what we are about - about what's going to happen in the situation, if you are selected as a juror? A. Not really, but I would like to say one thing, T and I don't know if I has a right to ask, but I have a feeling about the electric chair. Q. What feelings do you have? A. I don't like it. O. You don't like the electric chair. Miss Hudson, do you feel that in certain cases - or can you con- ceive of the situation where the death penalty would be an appropriate punishment? AK, I- I- I- was always taught thou shall not kill, and I would feel, you know, I would sit there arc - no matter what this person done, you know, to me, and I will sit there and write down that the death penalty, and I don't believe in it, you know, killing anybody, and that would be a burden on me, that my vote was in there to do this action, and I don't believe in it, you know. Q. Well, let me ask you this. [Prosecutor]: Cause. [Defense Counsel]: May I - [Prosecutor]: Motion for cause. THE COURT: Motion for cause is overruled. Counsel, there is a motion for cause. Q. I am going to try and complete the question, if I am able to. The State is going to be seeking the death penalty against my client. Would you be able to wait and listen to here [sic] all the evidence before you make your decision on whether or not the death penalty should be applied? [Prosecutor]: Object. THE COURT: She may answer. A. THE *'’ROR: Well, just like I told you, I don't believe .n the death chair, so - [Defense Counsel]: I have no further questions, Judge. THE COURT: You may step down, ma'am. Thank vou. (Juror is excused): (Opinion p. 20-21) At the conclusion of the initial stage of the death penalty hearing, Mr. Williams was found eligible for the death penalty based on two statutory aggravating factors. The first of these was that he had committed a murder during the commission of the various felonies, (H. 4173) See Ill. Rev. Stat., Ch. 38, Sec. 9-1(b)(6). The second factor found was that the victim was "material witness" against petitioner Section 9-1(b).7> At the conclusion of the second phase of the sentencing hearing the jury was instructed to consider the eggravating factors they had perviously found, as well as all other non-statutory factors. The jury returned verdicts directing the court to sentence Hernando Williams to death. (H. 5510) Subsequently this sentence was imposed upon Mr. Williams with the court stating on the record that by the terms of the Illinois statute it was bound by the jury's verdict. (H. 5558) * The defendant committed the murder with intent to prevent the murdered individual from testifying in any criminal prosecution or giving material assistance to the State in any investigation or prosecution, either against the defendant or another; or the defendant committed the murder because the murdered individual was a witness in any prosecution or gave material assistance to the State in any investigation or prosecution, either against the defendant or another. sis Counsel independent of the Cook County Public Defender which had represented Hernando Williams at the plea and sentencing hearing were appointed to prosecute a motion to vacate the pleas of guilty. The motion was denied and the case appealed to the Illinois Supreme Court. In affirming Hernando Williams' conviction and the sentence of death, the Illinois Supreme Court implicitly accepted the racial motivation for the state's use of peremptory challenges, and based its affirmance on the holding in Swain v. Alabama, 380 U.S. 202, (1965) that the exclusion of prospective jurors because of race became a Constitutional violation only when it is shown to exist in "case after case". In his brief, petitioner provided the court with stetistics gathered by the Illinois Coalition Against the Death Penalty and argued that these statistics supported a conclusion that the Swain test had been satisfied. The court pointed out certain deficiencies in the statistics and noted that they had not been presented to the trial court. (Opinion, p. 10) Cn rehearing Petitioner pointed out that Williams' case was an appeal from a mction to vacate guilty plea anc argued that the case could be remanded for a hearing on the Swain issue. The rehearing was denied without comment. (See Appendix B) As to the exclusion of Delores Hudson, the court apparently concluded that the record did not establish that she qualified for exclusion under the standard of Witherspoon v. Illinois, 391 U.S. 510 (1968) but that the error of her exclusion had been waived because defense counsel voiced the wrong objection. (Opinion p.21) The Court's only authority for this holding was a state case dealing with an evidentiary issue. Town of Cicero v. Industrial Com., 404 Ill. 487, 89 N.E. 2d 354 (1950) The court aiso rejected Petitioner's arguments concerning the validity of the Illinois Death Act. Citing its previous decisions on the issue and specifically rejected the argument that comparison review was necessary in capital cases. (Opinion p. 2-3) THE MANNER IN WHICH THE CONSTITUTIONAL CLAIMS WERE RAISED The State's racially motivated use of peremptory challenges was brought to the trial court's attention prior to the completion of the jury selection process. (HK. 2005) It wes formally raised in a written motion to dismiss the jury. (H. 3170. 6341) It was also presented in the written motion to vacate the plea of guilty and briefed before the Illinois Supreme Court. (Opinion p. 10) The exclusion of Delores Hudson in violation of the holding in Witherspoon v. Illinois was raised before the trial court by the following defense objection: Mr. Nudelman: I want to make a record of some- thing. For the purposes of the record, Judge we are...Again, Mrs. Hudson was excused over our objections, Judge. We do not feel we had a sufficient opportunity to go into proper witness questioning and I am making the objection." (H. 2410-11) The improper exclusion of scruppled jurors under the guidelines of Witherspoon was raised in the motion to vacate and briefed before the State Supreme Court. (Opinion p. 15-23) The constitutionality of the Illinois Death Act was raised prior to the hearing in a written motion (R. 1018-1027); was presented in the motion to vacate the plea and briefed before the Illinois Supreme Court. (Opinion p. 3-4) REASONS FOR ALLOWANCE OF THE WRIT I. HERNANDO WILLIAMS' RIGHT TO A JURY AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WAS VIOLATED EY THE PROSECUTION'S USE OF PEREMPTORY CHALLENGES TO EXCLUDE RACIAL MINORITES FROM THE JURY WHICH ULTIMATELY IMPOSED THE DEATH PENALTY ON MR. WILLIAMS. ALTERNATIVELY IN LIGHT OF THE ON-GOING HISTORY OF RACIALLY MOTIVATED USE BY PROSECUTORS IN COOK COUNTY OF PEREMPTORY CHALLENGES, AS RECOGNIZED BY AT LEAST ONE ILLINOIS SUPREME COURT JUSTICE AND ONE DIVISION OF THF STATE APPELLATE COURT, THIS CAUSE SHOULD BE REMANDED TO THE STATE TRIAL -8- SS COURT FOR AN EVIDENTIARY HEARING IN LINE WITH THE HOLDING IN SWAIN V. ALABAMA, 380 U.S. 202 (1965) A. HERNANDO WILLIAMS' RIGHT TO BE TRIED BEFORE A JURY WAS VIOLATED BY THE PROSECUTION'S DELIBERATE EXCLUSION OF ALL BLACKS FROM THE PETIT JURY. Hernando Williams plead guilty to murder, armed robbery, aggravated kidnapping and rape in the Circuit Court of Cook County, Illinois. Following a sentencing hearing had before a jury, Williams was sentenced to death for murder. The woman who was killed was white. Most of the State's witnesses were white. The defendant is black. His family and the people he knew who asked the jury to spare his life were black. The jurors that heard the testimony and whose verdict condemned Hernando Williams to death were all white. Of the 128 propsective jurors examined during voir dire, 28 were black. Of those two were excused for cause on motion of the defense. One had already formed the opinion that Williams should be executed and the other took part in the investigation of the cese. A total of 15 black jurors were excused for cause on the state's motion. Fleven of the 20 peremptory challenges used by the State were directed at blacks: 8 during the selection of the actual jury, and 3 to remove all the blacks called as potential alternates. (H. 6341) During the voir dire examinations the defense identified each juror by race and when the State's pattern of racial exclusion became apparent, brought the matter to the court's attention. (H. 2005) The issue was formally raised in a written motion to dismiss the jury (H. 6341) which was denied after argument. (H. 3170) The State offered no justification and the court failed to require any justification for the prosecution's use of peremptory challenges against blacks. The exclusion of racial minorities from petit juries hes been recognized as a violation of the Fourteenth Amendment. Whitus v. Georgia, 385 U.S. 545 (1967) Yet under the authority = a tl of this Court's holding in Swain v. Alabama, 380 U.S. 202 (1965) - - the Illinois Supreme Court rejected Williams' argument tha rights under the Sixth and Fourteenth Amendment were violeted by c the prosecution's use of peremptory challenges to obtain an all oO white jury. Ironically the holding in Swain does not condone the racially motivated use of peremptory challenges. Rather it requires a showing of a systematic and purposeful exclusion of minorities over a period of time. 380 U.S. 202, 223, The Swain decision was based on the equal protection clause of the Fourteenth Amendment and not on the Sixth Amendment right to trial by jury which was subsequently recognized in Taylor .. Louisiana, 419 U.S. 522 (1975). Aside from the fact that Swain is not truly a right to jury ee Ve holding have arisen. In their dissent from the derial of certiorari in McCrav v. New York, U.ns 33 Cr. L. 4067 (1983) and Brennan stated that those cases presented "a significant and recurring question of constitutional law: whether the State's use of peremptory challenges to exclude all potential Negro jurors because of their race violates a criminal defendant's right to an impartial jury drawn from a fair cross-section of the community." Justices Stevens, Blackmun and Powell, while maintaining that certiorari was properly denied, agreed with the dissenting Justices appraisal of the importance of the underlying issue, but felt it to be a sound exercise of discretion to allow the States to serve as laboratories in which the issue receives further study before it is addressed by this Court. In his petition for rehearing before the Illinois Supreme Court, Williams pointed out the fact that the opinions in McCray indicate that the holding in Swain is no longer controlling and, in essence urged the Illinois Court to assume the experimental role called for by the concurring justices. The Illinois Supreme Court denied the rehearing without comment. (Appendix B) ‘ — _- r trom e er seeki g ly applicable. Others may ¢ refrain fr arguabl y app.icad.e. the death penalty. f in thich cists in pratice A good example of the arnitrariness which exists f imilar central Illinois appears in a comparison of two simi:ar centra? PT | | : S amo inties Since the ; ‘urisdictions, Champaign and Sangamon Counties. r 111i ath lty Statute, prosecutors in enactment of the Illinois Death Penalty} p } : — t av ught the th penalty in every murder Champaigr. County have sought the dea Pp ing f fas present. See i i they ] ig factor was pre € case in which they felt an aggravating 387 N 2d 1284 111. People v. Kirkpatrick, 70 Ill. App. 3d 166, 387 N.E. 2d leck] 2 Ill. 2d 145, App. 1979) (double murder); People v. Gleckler, 82 Il}. d 11 N.E. 2d 849 I11. (1980) (double murder); People v. LeCrone, ict, No. 15877 Illinois Appellate Court, 4th District, ] Dist, No. 16759 (murder-robbery); People v. Peeptes, 4th Dist, Nc Thi a ic j in rp ntrast tio (murder-attempted rape). This practice 1S ii sharp co a ounty, where although t icy i arby Sangamon County, wher the apparent policy in nearby vsang ounty ; i = Te«w kh 2 e five murder defendants were subject to the death penaity ecaus ted cution has never a statutory aggravating factor existec, the prosecutio + ] ry. Nesbi Civ. SC. sought the death penalty. See People v. Nes! - (second murder convictions); People Sangamon County No. 78-CF-53/ No. 16274 (murder-robbery); People v. Lee, A . Vel — as v. Brents, 4th Dist, - tos ’ 73 irder- rv); ple v. Hicks, 4th Dist, Lth Dist, No. 16273 (murder-robbery); Peop : 7 } > a 7 No. 16674 (murder-attempted murder-armed robbery); Feopie v. ayU. + / 4 - - } ty No. 70-CF702 (second murder Groth, Sangamon County Case ho. 70-CF702 ( conviction). 9 Se aS me In the case of People v. LaPointe, 88 Ill. 2d 482, 43 7 t j 1on-negotiated plea of 2d 344, (1972) the defendant entered a non g ) ta j t ra guilty to armed robbery and murder. The State did not ask fo death hearing. In reviewing the life sentence imposed upon Illinoi r ted: LaPointe, the Illinois Supreme Court note The record in this case indicates that the defendant, a young man with a signiticant history of criminal activity, acted with premeditate, cold-blooded deliberation in deciding to kill a cab driver, . — for which the death penalty could ——_ een sought, had the prosecutor elected to : + Following that murder and while pind eld in the county jail, he displayed a ca ig attitude and empress. Soe of remorse by The Illinois Supreme Court in Williams' case has foreclosed any further consideration of the issue of the prosecution's racially motivated use of peremptory challenges. See People v. Withers, _ Ill. App. 3d ___, 450 N.E. 2d 1323 (1st Dist., (1983). In that case the State exercised seven of the nine peremptory challenges used to exclude blacks. The court noted: The record reveals that the jurors were diverse but alike in many ways. Most were homeowners and middle-aged. Many had one or more children still in school. Some were young and unmarried. Some were members of civic or church-related organizations or associations, but most were not. Most read the same kinds of magazines-Time, Reader's Digest, Sports Illustrated, National Geographic. Two were members of the National Rifle Association. For these reasons defendant contends that the circuit court erred when it refused to require the State to show that it had not exclude all the prospective blacks jurors simply because they were black. 450 N.E. 2d at. 1327. The court then quoted verbatim from the Illinois Supreme Court's holding in Williams, and concluded that the argument must be rejected. 450 N.E. 2d at 1327-29. Unfortunately, until Swain is specifically overruled, or modified, the courts of this nation will continue to consider it the controlling authority. See Footnote 3 in Justice Marshall's dissent from denial of certiorari in Gillard v. Mississippi, U.S. , 34 Cr. L. 4013 at 4014 (1983). Only two state's courts have had the initiative to recognize the validity of this issue “and in order to do so had to rely on the state's constitution. People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978); Commonwealth v. Soares, 377 Mass. 593, 387 N.E. 2d 499 (Mass., 1979). The issue is apparently considered open in New Mexico. See State v. Crespin, 94 N.M. 486, 812 P. 2d 716 (1981). Even less experimentation can be expected from the Circuit Courts in the Federal System which are certainly bound by the Swain precedent. In United States v. Carter, 528 F. zd 844 (8th Cir., 1975) cert. denied 425 U.S. 961, the Court of Appeals recognized that a serious question arose from the practice of the United States attorney in striking most or all blacks from the jury when the defendant was black. The Court urged the trial Pay hs courts to exercise their supervisory powers and require the prosecutor to discharge his duties in a fair, even and constitutional manner, and thus ensure that no juror is denied the priviledge of serving on a jury solely because of his race. However, the Eighth Circuit, sitting en banc, has now concluded that it has no choice but to follow Swain until this Court reconsiders that decision. See United States. v. Childress, F. 2d _,33 __, Cr. L. 2519, at 2521 (1983). Significantly, the decision of the Illinois Supreme Court in the instant casue is cited as authority for precluding the Circuit's experimentation on this issue and the continued validity of the Swain holding. It is respectfully urged that this Court grant certiorari in the instant cause to reconsider the continued validity of the holding of Swain v. Alabama. B. WHERE AT LEAST ONE JUSTICE OF THE ILLINOIS SUPREME COURT AND NE DIVISION OF THE ILLINOIS APPELLATE COUPT HAVE RECOGNIZED THE EXISTENCE OF "AN OPEN SECRET'' THAT PROSECUTORS IN CHICAGO AND ELSEWHERE HAVE HISTORICALLY AND SYSMATICALLY USED PEREMPTORY CHALLENGES TO REMOVE ALL OR ALI BUT TOKEN BLACKS FROM JURIES IN CRIMINAL CASES WITK BLACK DEFENDANTS, PETITIONER WILLIAMS IS ENTITELD TO A HEARING ON THIS ISSUE UNDER THE GUIDELINES OF SWAIN V. ALABAMA, 380 U.S. 202 (1965). | In his opening brief before the Illinois Supreme Court Petitioner, Hernando Williams presented statistics from the Illinois Coalition against the Death Penalty in support of his argument that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated in that the prosecution used peremptory challenges to exclude blacks from jury service. The statistics, as pointed out by the Illinois Supreme Court indicated that over half the juries in 43 recent capital cases were all white and that most of the other * capital juries had only one black The court went on to point out what it perceived as imperfections in the statistics offered, such as the lack of any indication as to how many peremptory challenges were used in each case. (Opinion p. 10) In Swain v. Alabama, 380 U.S. 202 (1964) this Court held that a defendant would be entitled to relief if he could establish a systematic exclusion of minorities from petit juries over a period of time. It is petitioner's belief that the *Juries for Blacks for Conviction Juries for blacks for Sentencing (c) Hill 1 Black Hill 1 Black (c) D. Williams 1 Black D. Williams All White (c) Yates 1 Black Yates 1 Black (c) F. Walker l Black F. Walker All White Lewis All White Lewis All White Lampkin 11 White Lampkin All White (c) Gaines All White Gaines All White (c) Cobb All White Cobb All White Tillis All White Tillis All White Tiller All White Tiller All White H. Williams All White Jones 1 Black Juries for White 10 Whites had juries. 9 were all White. In one the lawyers could "recollect" one to two Blacks. Juries for Hispanics The four Hispanics had juries. One was all White, another had 1 Black, the third had 4 Blacks and the last had 1 Black and l Hispanic. (The (c) designates cases from Cook County.) From Illinois Coalition Against the Death Penalty, Bulletin, October, 1980. «39e figures put before the Illinois Supreme Court are sufficient to require a hearing on this issue. In his petition for rehearing before the Illinois Supreme Court, Petitioner in fact argued that in light of the procedural history of his case a remand for a hearing on this issue would be appropriate. The rehearing was denied without comment. Since the denial of the reheairng in petitioner's case, the Illinois Coalition Against the Death Penalty has reieased updated figures.“ Since the enactment of the latest Illinois Death Act, there have been 61 Juries involved either in the trial or the penalty phase. Of these, 40 were all white, ten had one black. . Because petitioner's conviction was by plea of guilty, in order to perfect an appeal, he had to, within 30 days of final judgment prosecute a motion to withdraw the plea. Under Illinois Supreme Court rules a hearing may be held on such a motion. “Total Juries - 61 All White 40 (662) Total Jurors - 732 1 Black 10 (162) Total from l1 or 2 Blacks* 1 (1.52) minorities - 44 (6%) 2 Blacks 1 (1.5%) 4 Blacks 2 (3%) Same jury for conviction and sentencing 39 5 Blacks b fi.2ee Jury for conviction only 10 1 Black/lHispanicl(1.52) Jury for sentencing only 6 2 Blacks/1lHispanicl(1.52Z) Two separate juries 3 4 Blacks/1lHispanicl(1.57Z) 3 Blacks/2Hispanics(1.52) Bench for conviction and sentencing 8 1 Black/1 Asian 1(1.52) Bench for conviction only 3 1 Hispanic 2 (1.52) Bench for sentencing only 12 *As recollected Pled Guilty 4 Plea with jury sentencing 2 Plea with bench sentencing] Illinois Coalition Against the Death Penalty July 31, 1983. «ldo Aside from the statistics concerning capital cases, the Iliinois courts have noted the problems of the prosecutor's racially motivated use of peremptory challenges. In the case of People v. Payne, 106 I11. App. 3d 1034, 435 N.E. 2d 1046 (1983) the appellate court reversed a conviction holding that the prosecution's systematic exclusion of Blacks in that case solely because of race was invidious and a violation of an individual's Sixth Amendment right to a jury. The same division of the appellate court, (lst Dist., 3rd Div.) also found improper racially motivated peremptory challenges in the cases of People v. Gosberry, 109 Ill. App. 3d 647, 440 N.E. 2d 954 (1982) and People v. Gillard, 112 Ill. App. 3d 799, 445 N.E. 2¢ 1292 (1983). All of these decisions were rendered before the Illinois Supreme Court's opinion in Peititioner's case in which that court blindly adhered to its previous interpretation of Swain v. Alabama. The State sought and was granted discretiorary review in all three cases. Payne has been argued but not yet decided. The State's petition for leave to appeal in Gillard was recently granted, Ill. S. Ct. Docket #58145. In Gosberrv, the state's petition was granted and without argument or briefs, the Illinois Supreme Court reversed the appellate court's holding in that case citing dicta from the case of People v. Davis, 95 Ill. 2d 1, 447 N.E. 2d 353 (1983) in which the racial exclusion argument had been rejected at least partially because there was an insufficient record to support the argument. Justice Seymour Simon dissented from the summary action in Gosberry and pointed out that the Payne case was still pending before the court. Justice Simon noted in his dissent the growth in the number of cases in which the issue had been raised. He went on to conclude: In view of the staggering number of cases in this State raising this issue, I question whether it has not been established that prosecutors in Illinois have been purposely and systematically using peremptory challenges in case after case to achieve the exclusion of oS. black persons from iuries in a State having one of the largest pouplation of blacks persons in the nation.” 449 N.E. 2d at 818. Justice Simon also quoted from the opinion in People v. Gillard, 112 Ill. App. 3d 799, 445 N.E. 2d 1293, 1299, in which Justice Rizzi of the appellate court wrote: It is an open secret that prosecutors in Chicago and elsewhere have been using their peremptory challenges to systematically eliminate all Blacks, or all but token Blacks, from jurics in criminal cases where the defendants are Blacks. (Citation omitted) 445 N.E. 2d at 1297. Another significant factor in Gillard was the observations of the trial judge, the Honorable Howard Miller. After denying defense motion to discharge the jury due to the prosecutor's raciallv motivated use of peremptory challenges because he was bound by the streit-jacket of Swain, Judge Miller noted for the record: 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 dis- crimination, in my opinion. It's an invidious discrimination. Its a bad policy that thev 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. SF 2 In my past experience I found this same policy, the same procedures followed. All right. Your motion is denied. 445 N.E. 2d at 1295. Again, in his dissent in Gosberry, Justice Simon wrote: Whether this systematic use in Illinois of peremptory challenges to exclude black jurors on the basis of race violates the equal protection clause of the Fourteenth Amendment even under the majority's interpretation of the standards announced by the Supreme Court in Swain calls for an examination by this court. 449 NE. 2d 819. -l6- co a ———=—— -atutedtieaitiees Meciieieeaestee oe If it is this Court's intention to allow the holding in Swein to remain in force, it is incumbent on this Court to set standards that will allow defendants who face trial or have been ried in jurisdictions such as Cook Cointy, Illinois where the prosecution's historic racially motivated use of peremptory challenges are common knowledge subject to judicial notice to litigate that issue. Certiorari should be granted in this case to settle the question of the continued validity of Swain v. Alabama, or alternativly to recognize that the holding in Swain requires that Petitioner be given the opportunity to establish the continuing historic and systematic exclusion of blacks from criminal juries in Cook County, Illinois. II. HERNANDO WILLIAMS' SIXTH AMENDMENT RIGHT TO A JURY DRAWN FROM A CROSS-SECTION OF THE COMMUNITY WAS VIOLATED BY THE EXCLUSION OF JURORS WITH SCRUPLES AGAINST TRE DEATH PENALTY. IN AFFIRMING THE SENTENCES OF DEATH IMPOSED UPON WILLIAMS THE ILLINOIS SUPREME COURT ERRED BY MISAPPLYING STATE EVIDENTIAPY WAIVER RULES TO A SIXTE AMENDMENT ISSUE. Hernando Williams was sentenced to death by a jurv from which jurors with scruples against capital punishment were excluded on the state's motion. During the jury selection process, the defense objected to these rulings. The issue was also raised in the post-hearing motion to vacate guilty plea and on direct appeal in the Illinois Supreme Court argument was advanced that 12 prospective jurors had been erronously excluded in violation of this Court's holdings in Witherspoon v. Illinois, 391 U.S. 510 (1968) and Adams v. Texas, 448 U.S. 38 (1980). The Illinois Supreme Court held that, as to four of the venire persons in question the exclusion had "no reference to the and that seven of the others were properly death penalty’ excluded under the Witherspoon holding. (Op. p. 16) As to one of the jurors, Delores Hudson, the Illinois Supreme Court held that she was excluded for her views of the death penalty but that "any possible error in regard to Witherspoon was waived". (Op. p. 20) The court then set out excerpts from her examination, and stated its holding that because the defense voiced the specific objection as to her dismissal "that the defense did not have a sufficient opportunity to question the prospective juror. (Opinion p. 20) “any Witherspoon error was waived. The actual objection was: MR. NUDELMAN: I want to make a record of some- thing. For the purposes of the record, Judge we are...Again, Mrs. Hudson was excused over our objections, Judge. We do not feel we had a sufficient opportunity to go into proper witness question and I am making the objection.” (H. 2410-2411) The only authority cited by the Court to support its holding that this objection waived any Witherspoon issue was the case of Town of Cicero v. Industrial Commission, 404 I1l1. 487, 495, 404 N.E. 26 354 (1950) and a treatise on Illinois Evidence. (Op. p. 21) *Petitioner maintains that all scrupled jurors were improperly excluded. As to two of the four whose exciusion the Court declared unrelated to the death penalty. Jean Samps, despite a belief in capital punishment was excused because she didn't want to "Play God" (R. 2237) and Joan Carter was excluded because she stated she would follow her "inner feelings" even if those feelings conflicted with the trial Court's instruction. Ms. Carter could not envision a situation where she would not follow the law. (H. 1478-81) (Op. 16-17) Under Witherspoon, the excusal of these jurors was error. -18- The application of state evidentiary rules of waiver to a question of a capital defendant's Sixth Amendment right to a jury reflecting of a cross-section of the community is highly questionable. Indeed, in the case of People v. Szabo, 94 I11. 2d, 327 447 N.E. 2d 193 (1981) the Illinois Supreme Court refused to apply any concept of waiver to the improper excusal of two jurors stating: "we do not consider the improper-exclusion argument to be waived by the lack of a contemporaneous objecticn here." 447 N.E. 2d at 206. The question of whether or not the failure of the defense to object or voice the proper obiection on a Witherspoon issue has been before this court in at least two cases. California v. Velasquez, 448 U.S. 903, (1980) and California v. Lanphear, 449 U.S., 801. In both these cases, the State court had held waiver could not be applied. People v. Velasquz, 2€ Cal. 3d 514 606 P. 2d 341 (Cal. 1980) and People v. Lanphear, 608 P. 2d 689 (1980). The prosecution appealed and this Court vacated the judgments and remanded in light of Adams v. Texas, 448 U.S. 38 (1980). California v. tT Velasquz, 448 U.S. 903, (1980) and California v. Larphear, 449 U.S. 801 (1980). In reaching its original decision, the California Supreme Court examined the procedural history of various cases which this Court had summarily reversed on Witherspoon issues. These included the case of Wigglesworth v. Ohio, 403 U.S. 947, (1971) in which the state court had held the issue of a juror's excusion waived. Indeed in Wigglesworth, the Ohio Supreme Court had held that the defense agreed to having the juror excluded. State v. Wigglesworth, 18 Ohio St. 2d 171, 248 N.E. 2d 607, 614 (1969). Nevertheless, the resulting death sentence was vacated. In May v. State, 618 S. W. 2d 333, the Texas Court of Criminal Appeals, despite what three dissenting iudges believed to be sufficient objections, held as did the Illinois Court in -19- this case that an insufficient objection had been made to preserve an Adams-Witherspoon issue. In May v. Texas, 454 U.S. 959 (1981) this court granted certiorari and vacated and remanded the case for reconsideration in light of Adams v. Texas. In Bass v. Estelle, 699 F. 2d 1154 (1983) the Fifth Circuit held various Witherspoon errors waived. This holding was mitigated; the case being remanded for a hearing concerning allegations of incompetency, which included the failure to object to the improper excvsal. However in Granviel v. Estelle, 655 F. 2d 673 (5th Cir.,1981) the Fifth Circuit held the absence of a contemporaneous objection did not constitute a procedural default. Thus holding was based on the apparent absence of a contemporaneous objection rule at the time of petitioner's trial. The holding by the Illinois Supreme Court in People v. Szabo, 94 Ill. 2d 327, 447 N.E. 2d 193 (1981) that the absence of an objection in that case did not require the application of the waiver doctrine is significant. Why should waiver be applied to Hernando Williams in the most severe technical form but not to Szabo? In McCorquodale v. Balkcom, 705 F. 2d 1553 (llth Cir., 1983) the manner in which prospective jurors were yuestioned was held to violate the Witherspoon doctrine. The dissent in this case noted that no objection had been made by petitioner to the manner in which the jurors were questioned. Likewise in Burns v. State, 556 S.W. 2d 270, (Tx. Cr. App. 1977) the court found "harmless" a Witherspoon-Adams viclation and noted in passing that the only cbjection made was that the venire person should be questioned further. Relying on Davis v. Georgia, 429 U.S. 122, (1977) which held that the exclusion of a single juror in violation of Witherspoon required the vacation of the resulting death sentence, the Fifth Circuit, rejected the harmless error argument of the respondart. In dealing with a Wainwright v. Svkes, 433 U.S. 72 (1988) waiver argument advanced by respondent the court pointed out that much of the questioning of the juror at issue dealt with the Witherspoon cause, and thus viewed in context the objection was sufficient to present the issue. The nature of the objection was identical to the interpretation given the defense objection at Petitioner's hearing by the Illinois Supreme Court. See Burns v. Estelle, 592 F 2d 1297 (Sth Cir., 1979). The holding in Witherspoon is not a grant of authority to the prosecutors in death cases, rather it is a limitation. It sets forth what the prosecution must establish in order to sustain the exclusion of a scrupled juror. Only a narrow class of individuals, those so opposed to the death penalty as to be unable under any circumstances to consider it, are excludable. The exclusion of a single venire person who does not meet this narrow test requires the vacation of the resulting death sentence. Davis v. Georgia, 429 U.S. 122 (1976) Obviously the burden of establishing that the prospective juror qualified for exclusion under Witherspoon must rest on the State. The defense does not have the burden of establishing the negative of the proposition, i.e. that the juror could consider the death penalty. The holding by the Illinois Supreme Court in Williams' case to the opposite actually conflicts with the long standing Illinois law that the burden of establishing the need to excuse a juror rests on the party seeking to have the juror excluded. People v. Coie, 54 Ill. 2d 481, 298 N.E. 2c 705 (1973). Petitioner believes that despite the apparent confusion in some jurisdictions, that this Court has long settled the question of waiver on the Witherspoon issue. While the instant case does present the question, and could be a proper vehicle for this Court to explicitedly settle the issue, it is also a case which could be summarily disposed of by a grant of certiorari and a per curiam order vacating the death sentence imposed by the "hanging jury". (Witherspoon, 391 U.S. at 785) which condmended Hernando Williams to death. Cf. Wigglesworth v. Ohio, 403 U.S. 947 (1971). III. THE ILLINOIS DEATH ACT BOTH ON ITS FACE AND AS APPLIED AGAINST HERNANDO WILLIAMS IS VIOLATIVE OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTICH. As of July 31, 1983 there are 53 men under sentence of death in Illimpis. Nine of these men have had their sentences affirmed by the Illinois Supreme Court’, despite the fact that a majority of the justices sitting on that court have declared their belief that the Illinois Death Act in unconstitutional. See dissenting opinions in People ex. rel Carey v. Cousins, 77 Ill. 2d 531, 397 N.E. 2d 809 (1979) and People v. Lewis, 88 Ill. 2d 129, 430 N.E. 2d 1045 (1981) especially concurring opinions and dissent by Justice Simon. The Illinois statute allows the prosecutor total discretion on the basic decision as to whether or not an individual will be subjected to a capital sentencing hearing; it offers no true guidance to the sentencing authority and the concept of comparative appellate review has been explicitly rejected by the Illinois Supreme Court. In this situation the enforcement of the statute assures the freakishness that was held to be violative of the prohibition against cruel and unusual punishment in Furman v. Georgia, 408 U.S. 238 (1972). A. THE ILLINOIS DEATH ACT, BY VESTING TOTAL DISCRETION 1N THE PROSECUTORS AS TO WHOM SHALL BE SUBJECT TO THE DEATH PENALTY ENSURES THAT CAPITAL PUNISHMENT WILL BE INFLICTED IN A FREAKISH MANNER IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO "4E UNITED STATES. After a conviction for murder, a death penalty hearing in Illinois can be held only "[{w]here requested by the State." Ill. Rev. Stat., 1977, Ch. 38 Section 9-l(d). The Supreme Court of Illinois recognized that his statutory language places the decision on whether to convene a death hearing solely and * Based on statistics from Illinois Coalition Against the Death Penalty. o22- squarely in the hands of the Illinois prosecutors. People ex. rel. Carey v. Cousins, ’7 I11. 2d 531. 397 N.E. 2d 809 (1979). No other Jurisdiction grants such authority on what is basically a judicial issue to the executive branch of the government. Fowr of the seven Justices now sitting on the Supreme Court of Illinois believe that the Illinois statute violates the Eighth Amendment. See People v. Lewis, 88 I11. 2d 129, 430 N.E. 2d 1346 (1981). In the Cousins case, three Justices -- Ryan, Clark, and Goldenhersh -- joined in a dissent. All three opined that giving the Illinois prosecutor the crucial decision, without any guiding standard, as to whom shall be spared from the ultimate penalty, violated the Eighth Amendmert. A fourth, Mr. Justice Simon, adopted this positin in Lewis and has adherecd to it in subsequent cases. (He did not participate in the instant appeal). Although the three Cousins dissertcrs reaffirmed their views in Lewis, each refused to join Justice Simon for reasons ranging from stare decisis to reliance that tnis Court would review the case. People v. Lewis, 430 N.E. 2d at 1364. (Chief Justice Goldenhersh and Justices Ryan and Clark, concurring). In Gregg v. Georgia, 428 U.S. 153 at 188, 96 (1976) this Court explained the holding in Furman v. Georgia, 408 U.S. 238 (1972) noting that Furman prohibits the death penalty "under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner."' 428 U.S. at 188. The Illinois Death Act not only creates such a risk, but assures that capital punishment will be inflicted in an almost random manner. There are 102 counties in Illinois, each with one elected State's Attorney. Each of these prosecutors will approach any potential capital case with a different prosepctive. In some rural counties, a capital trial may be deemed simply too expensive in all but the most exceptional case. In other counties a prosecutor may, as an office policy, request a death penalty hearing in each and every case where the statute is wearing the tee shirt with the words "Elmurst Executioner" appearing thereon. We do not believe that the trial judge can be said to have abused his discretion in sentencing defendant to natural life imprisonment without parole. Under the Illinois Death Act, 431 N.E. 2d at 353 a prosecutors in one county will seek the death penalty against individuals like LaPointe, but other state's attorneys will not. It is true that in Grege v. Georgia, 428 U.S. 153, (1976) this Court recognized the necessity of proc«cutors exercising pre-trial discretion. The issue here is whether, in the total absence of any statutory guidelines the prosecutors should be the only authority on whether or not the death penalty should even be sought. Certiorari ought to be granted to settle this question. B. THE ILLINOIS DEATH ACT VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENT IN THAT IT PROVIDES NO DEFINED LIMITS ON THE FACTORS WHICH MAY BE CONSIDERED BY THE SENTENCING AUTHORITY, NOR DOES IT ALLOCATE A BURDFN OF PROOF AS TO THE ULTIMATE ISSUE. The Illinois Death Act requires, that once the prosecutor has decided to seek the death penalty, the sentencing authority determine the defendant's eligibility for the ultimate penalty by finding beyond a reasonable doubt the existence of one or more aggravating factors. Ill. Rev. Stat., 1977, Chapter 38, Section 9-1(b)1-8. If one of these factors is found the sentencing authority is required to consider the qualifying factors and anv “additional aggravating factors."' These factors may include but need not be limited to the statutory factors necessary to render the defendant liable to the death penalty. Ch. 38, Sec. 9-l(c). The nature of the additional factors in aggravation is not defeined by statute. The admissibility of these nonstatutory factors is not limited by the rules of evidence. Ch. 38, Sec. 9-l(e). Thus, when an Illinois defendant has been found eligible for the death penalty, there are no restrictions on the factors which may then be considered as reasons for actually imposing death on that defendant. =25- In Zant v. Stephens, U.S. , Fe ke BO. 26.235, . 203-8. Ct. 2733 (1983), this Court stated that due process of law would require a death sentence to be set aside where the aggravating label had been attached to conduct which was constitutionallv protectcd, to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, or to conduct that actually should militate in favor of a lesser penalty. 77 L. Ed. 2d at 255. The Georgia statute met these concerns because it gave the defendant pretrial notice of th evidence which would be presented. 77 L. Ed. 2d at 255-256. In addition, all factors to be considered at sentencing were defined by Georgia trial court before their submissicti. to the sentecing jury. See Hardy v. State, 245 G. 272, 264 S. E. 2d 209, 215 (1980). The Illinois Statute contains no comparable safeguards. In Barclay v. Florida, U.S. » Fh Bee Bs ZO ERae: 202 S. Ct. 3418 (1983), this Court considered whether the sentencer's reliance upon a nonstatutory aggravating factor violated constitutional safeguards. The Court held that it did not because the factor at issue concerned the defendant's criminal record, which was relevant even if not authorized as an aggravating factor by state law. The significance of this case is that the Florida statute required the sentencing court to set forth in writing its findings upon which the sentence of death was based, and that only because of this requirement could a reviewing court determine the sentencing court did not rely upon an impermissible aggravating factor. Again, the Illinois statute does not contain a comparable safeguard. The statute also fails to allocate a burden of proof. To convict and place a person in prison the State in a non-capital prosecution must establish proof beyond a reasonable doubt. In Re Winship, 397 U.S. 358 (1980). It follows that when the issue is whether or not an individual should be executed that the State must bear the burden of proof beyond a reasonable doubt. In the Illinois Death Penalty Act the only indication of a burden, indeed the only guidance given to the jury as to the ultimate question, is that the jury must conclude that "there are no mitigating factors sufficient to preclude the imposition of the death sentence.” I11l. Rev. Stat., Ch. 38, Sec. 9-l(g). The jury in this case was not given meaningful guidance in its final deliberations because the statute establishes no burden of proof as to the existence or non-existence of mitigating factors. There is no valid effort to guide the jury in the consideration of the character and record of the individual before them as is required by the Eighth Amendment. Woodson v, North Carolina, 428 U.S. 280 (1976). The conspicuot:s absence of any statutory language setting forth a burden of proof limiting consideration of aggravating factors, or directing consideration of mitigating factors result in a license for arbitrarv results on the decision of whether or not to impose the death penalty. Without such guidance it is intolerablv likely that one sentencing authority would apply a preponderance burden, while another would apply the more familiar standard of proof beyond a reasonable doubt, while still another may focus upon a standard akin to the clear and convincing evidence test. Indeed, given the failure of the Illinois statute to require specific findings of facts, it wili be impossible to determine whether a sentencer has applied any rational standard at all in weighing the evidence and reaching a decision. The Illinois statute also makes it intolerably likely that individual sentencers would differ on the ‘lecation of these burdens between the defendant anu the prosection. Such a system obviously creates a license for arbitrary procedure which this Court found impermissible in Furman v. Georgia, 408 U.S. 238 (1972). The Illinois Death Act presents a total absence of any guidance even on the issue of burden of proof. For these reasons it is respectfully reauested that certiorari be granted, and Petitioner's death sentence be vacated. . -27- C. THE ILLINOIS DEATH SENTENCING SCHEME FAILS TO PROVIDE ADEQUATE COMPARATIVE REVIEW PROCEDURES TO INSURE THAT THE DEATH PENALTY IS NOT IMPOSED IN AN ARBITRARY OR DISPROPORTIONATE MANNER. In Furman v. Georgia, 498 U.S. 238, (1972), this Court held that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. A capital sentencing scheme must provide a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not. Appellate review procedures which serve to insure that the death penalty is not being imposed arbitrarily and capriciously, by providing for comparative review, are essential to a constitutional death penalty scheme. Because such procedures are not yet provided for in Illinois, tnere is no guarantee that the death penalty will not be imposed in an arbitrary and capricious manner. The Illinois Supreme Court initially indicated that a tvpe of comparative review wouild be used in reviewing sentences of death. People v. Brownell, 79 Ill. 2d 508 (1980). Im People v. Gleckler, 82 Ill. 2d 145, 411 N.E. 26 849 (1980), the court asserted that it "historically exercised its power to reduce criminal sentences in both capital and non-capital cases, where it deemed them unduely severe." 82 Ill. 2d 145 at 162. Yet in the instant opinion, in a single sentence the Court declares, in effect, that a menaingful comparative review would require a comparison between all potential death cases. (Op. p. 3-4) The implication here is that the court has rejected the argument simply because it seems like too much work. In his brief before the Illinois Supreme Court petitioner pointed out that the Administrative Office of the Illinois Courts Annual Report to the Supreme Court of Illinois could provide at least a starting point for the task of comparative review. = Illinois also has a criminal sentencing commission whose's duties — 7 ~-* include development of "Standardized sentence guidelines". I Rev. Stat., 1981, Ch. 38, Sec. 1005-10-1. The task of comparative review is not impossible nor would it create an insurmountable burden. Hernando Williams’ sentence of death was affirmed in an opinion that makes no pretence of comparative review and in fact summarily rejected the concept. Ironically a very similar case, People v. Brownell, had previously been reviewed twice by the Supreme Court. In Brownell's first appeal, 79 I11. 2d 508, 404 N.E. 2d 181 (1980) his death sentence was vacated due to the apparent reliance of the sentencing authority, a judge, on an improper aggravating factor, i.e. that the person killed was a material witness. Upon remand Brownell was resentenced to death. Again his death sentence was vacated. The holding on the second appeal applied an analogy of collateral estoppel since the prosecutor had, at ore point offered not to seek the death penalty if Brownell would confess. He subsequently confessed after the offer was withdrawn. People v. Brownell, Ill. 24 __—s« 449 NE. 2d 1312 (1983). The facts in Brownell involved kidnapping, rape and murder, as did those in the instant prosecution. Following his arrest, Hernando Williams confessed, as did Crtis Brownell. Admittedly there are factual difference in that the victim in the instant case was held captive for a longer period of time. Yet no court has sought to explain how or even whether those difference justify the imposition of the ultimate penaity against Mr. Williams as opposed to the sentence of imprisonment which Curtis Brownell will serve. This issue is presently before the Court in Pulley v. Harris, No. 82-1095. Certiorari should be granted to determine whether the lack of comparative review in Illinois violates the Eighth and Fourteenth Amendments to the United States Constitution. =29- IV. HERNANDO WILLIAMS' RIGHTS TO DUE PROCESS AND TO BE PROTECTED FROM CRUEL AND UNUSUAL PUNISHMFIIT WERE VIOLATED BY THE APPLICAi LON OF AN AGGRAVATING FACTOR THAT POTENTIALI.Y RENDERS ALL HOMICIDES CAPITAL OFFENSES. One of the statutory aggravating fectors which the government must prove beyond a reasonable doubt in order to qualify an Illinois defendant for the death penaity is that the person killed "was a witness in a prosecution against the defendant,"' or was in position to give material evidence against the defendant. Ill. Rev. Stat., Ch. 38, 1978, Sec. 9-1(b)(7). In the case of People v. Brownell, 79 I11. 2d 508, 404 N.E. 2d 181 (1980) the Illinois Supreme Court noted that a literal interpretetion of this language would subject nearly all defendants convicted of murder to potential death sentences. The court therefore ruled that the actual legislative intent was limited to those situations where "during an investigation or prosecution of a separate offense which has previously taken place, a witness is killed to stymie the investigation or prosecution.” 404 N.E. 2d at 190. In the instant prosecution the jury which sentenced Hernando Williams to death, found the existence of this factor as well as the statutory aggravating factors that the victim was killed in “he course of the various felonies the victim witnessed. Ill. Rev. Stat., 1978, Ch. 389-(b)6. The facts brought out at the sentencing hearing indicate that the victim in this case was kidnapped, and held for 36 hours in various locations. On the morning of her death, she was released from the trunk of petitioner's car, and told to take a bus home and not contact the police. Williams then drove around the block, saw the deceased bn a front porch from which she was called. She was then taken to an alley and kilied. In this factual situation the Illinois Supreme Court some how concluded that the on-going felonies which constituted «96> statutory aggravating factors continued and that the deceased was killed because she was a material witness. The court's hoiding: Under these circumstances, the jury could have found both that the murder was committed "in the course" of the other felonies, and that the victim was an eyewitness. There is no significant difference between the circum- stances here and a situation in which a defendant kidnaps and rapes the victim, sets her free, and at a later time kills her while she is on her way to testify against him. The latter situation clearly is within this court's under- standing of the statute considered in Brownell. We do not see why the General Assembly would not have intended the circumstances here to be within the statutory factor. The legislature's clear concern, to protect persons who could assist in the apprehension and prosecution of the accused (see Remarks of Senator Knuppel, debate of amendment 3 to H.B. 10, 80th Gen. Assem., June 1, 1977, at 21-25), is served by such an interpretation. (Op. p. 9) The court offered no explanation as to how, in light of this conclusion, it could be said the other aggravating factor, that the witness was killed in the course of a felony would be validly found by the jury. In People v. Brownell, the Illinois Supreme Court recognized that the statutory aggravating factor could not be literally applied. Its holding in Williams however creates a problem since the killing of a material witness now may or may not be applicable in any given case depending upon the court's conclusion that the killing has "no significant difference” between killing the witness on his way to court. This interpretation of the broad statutory language creates an absolute certainty that death sentences will be imposed in an arbitrary and capricious manner which violates the Eighth Amendment. Godfrey v. Georgia, 446 U.S. 420 (1981). The importance here is that under Illinois law the finding of an improper aggravating factor requires, at a minimum, a new sentencing hearing. People v. Brownell, 79 I11. 2d 508, 404 N.E. 2d 181 (1978). Even in non-capital cases, reliance on improper aggravating factors generally requires re-sentencing. People v. Conover, 84 Ill. 2d 400, 419 N.E. 2d 906 (1981). Although s$l- Illinois courts have recognized some potential for harmless error, the test seems to be whether or not the sentencing authority was "arguable influenced" by the improper reliance. Cf. People v. Eddington, 77 I1l. 2d 41, 394 N.E. 2d 1185 (1979). Since the jury in this case believed that two separate aggravating factors existed and since the jury was instructed during its final deliberations to consider the aggravating factors that had previously been founc, the death sentence imposed upon Hernando Williams must be vacated. VY. SINCE ONLY THE PROSECUTORS COULD DETERMINE WHETHER OR NOT TEE DEATH PENALTY WOULD BE SOUGHT AGAINST HERNANDO WILLIAMS HIS RIGHTS TO DUE PROCESS WERE VIOLATED WHEN THE COURT ACCEPTED HIS PLEA OF GUILTY WITHOUT INFORMING WILLIAMS THAT EVEN A CONVICTION BY PLEA OF GUILTY WOULD SUBJECT HIM TO THE STATE'S ATTORNEY'S DISCRETIONARY ELECTION TO SEEK THE DEATH PENALTY. At the time Hernando Williams, through his counsel, announced his intention to plead guilty to murder and other offenses, he did not and could not know whether he would face the death penalty. Under the Illinois Death Act a death penalty hearing can be held only when "requested by the State."" J1l. Rev. Stat., Ch. 38, Sec. 9-1l(d). After the announcement of Petitioner's intent to enter pleas of guilty, the court, prior to accepting Williams’ plea, attempted to admonish him pursuant to the requirement of Illinois Supreme Court Rule 402 and this Court's holding in Boykin v. Alabama, 365 U.S. 238, (1969). The court's admonishments included the rights waived by a plea of guilty and an attempt to convey the consequences of the plea. The comments by the court concerning sentencing were: I must advise you further that you can be tried before this court or before a jury. If you are found guilty ct murder, under the circumstances of which case the death penalty could be imposed. I must also advise you in addition to the possibility of the death penalty under the Code as it exists in the State of Illinois, is a further provision for the imposition of sentence for the crime of murder wherein it is provided the minimum term to be imposed shall be not less than 20 years not more than 40 years. If the Court finds that the murder again was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or if any of the aggravating factors listed in the Code proper were found to be present, the Court mav sentence the defendant to a term of natural life imprisonment. (H. 10-13) No clear statement was made as to the penalties which could be imposed after a plea of guilty. The clear import of the judge's admonition is that Hernando Williams could be sentenced to death only "If tried and convicted" by a jury or "If found guiity" at a bench trial. At the time of his plea of guilty Hernando Williams did not and could not have known the maximum penalty that his plea could subject him to. Williams' plea was not negotiated. In fact the State expressed surprise during the plea proceedings and emphatically stated that no promises or deals had been made. (H. 61) At en earlier heering, in response to a defense motion for disclosure as to whether or not the death penalty would be sought the State characterized the case as "a potential death penalty case"’ but in essence refused to disclose to defendant, his counsel or the court whether or not that penalty would be sought. (H. 6116-6117) The response ended with the declaration that the prosecution would decide whether or not to seek the death penalty "If and when it is necessary." (H. 6117) After judgment was entered on the pleas, the State moved that the case be passed, since no determination as to whether or not to seek the death penalty had been made. (H. 63) Thus even after the plea had been accepted and judgment entered thereon, no one in the courtroom, least of all defendant or his lawyers, knew the full consequences of the plea, i.e. whether the death penalty would be sought. Thus the record can not be said to show that «A3easons, Petitioner Hernando Williams, respectfully requests that a Writ of Certiorari be issued to the Supreme Court of Illinois. OF COUNSEL: Sheldon Bart Nageiberg CONCLUSION Respectfully submitted, STEVEN CLARK Deputy Defender KENNETH L. JONES Assistant Appellate Defender Office of the State Appellate Defender 109 North Dearborn Street 8th Floor Chicago, Illinois 606002 (312) 793-5472 -35- IN THE SUPREME COURT CF THE UNITED STAFESBE CEIVED NOV 21 1983 TOBER TERM, 1983 OFFICE OF THE CLERK i . SUPREME COURT, U.S. RKERNANDO WILLIAMS, Petitioner, 7 837540 PEOPLE OF THE STATE OF ILLINOIS -VSsS- Respondent. APPENDIX FOR WRIT OF CERTERIORARI | + - + ~~ as STEVEN CLARK Deputy Defender KENNETH 1. JONES Assistant Appellate Defender Office of the State Appellate Defender 109 North Dearborn Street 8th Floor Chicago, Illinois 60602 (312) 793-5472 COUNSEL FOR PETITIONER Of Counsel: Sheldon Bart Nagelberg vy Docket No. 53240—Agenda 2—September 1982. THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. HERNANDO WILLIAMS, Appellant. JUSTICE WARD delivered the opinion of the court After his pretrial motions had been denied, Hernando Williams changed his piea to guilty in the circuit court of Cook County to charges of murder, armed robbery, rape and aggravated kidnaping. The pleas were accepted and judgment was entered upon them. The State then asked for the death penalty, and after a bifurcated sentencing proceeding before a jury and the judge who had accepted the pleas, the defendant was sentenced to death on the murder conviction. He was sentenced to concurrent terms of 30 years for armed robbery and aggravated kidnaping. He was sentenced to 60 years for rape, but that sentence was ordered to run consecutively to a prior 30-year sen- tence for rape. The circuit court denied a motion by the defendant to vacate the picas of guilty, and the defendant has taken a direct appeal to this court under the Constin- tion of Mlinois (Ill. Const. 1970, art. VI, sec. 4(b)) and un- der our Rule 603 (73 Lil. 2d R. 603). According to testimony given at the sentencing hear- ings and at an earlier motion to suppress statements of the defendant, the victim, Mrs. Linda Goldstone, on March 30, 1978, was employed at Northwestern Memoriai Hospital in Chicago as an instructor in the Lamaze method of child- birth. On that evening, as she was alighting from her car in the vicinity of the hospital, she was approached by the defendant and robbed at gumpoint. He made her undress from the waist down. He then forced her into his car and, it appears, took her to a shop owned by his father. There he bound her hands and feet. He then forced her into the trunk of his car. With Mrs. Goidstone in the trunk, the defendant picked up his sister at work and drove her home. He then drove the victim to 2 motel, forced her inside and raped he-. On the next day, with Mrs. Goldstone bound and locked in the trunk of the car, the defendant appeared at a subur- ban court where charges of aggravated kidnaping, rape, and armed robhery were pending against him. The case was continued, and the defendant then drove to visit a friend; Nettie Jones, at her apartment. While he was there, people of the area heard cries for help coming fom the trunk of his auto. Someone notified the police of the in- cident. The defendant drove away from a crowd that had gathered and proceeded to a tavern where he visited other friends. Early that evening, the defendant checked into another motel. He forced Mrs. Goldstone into the the motel and again raped her. Later, he forced her back into the trunk and picked up his niece at a friend’: house and drove the niece home. As he had done the di.’ before, he drove his sister home from work and spent the evening visiting van- ous taverns with friends. In the meantime, police were searching for the defend- ant’s car. The victim’s husband, Dr. James Goldstone, a physician, after learning that his wife had not appeared for class that evening, notified the police of her absence. The victim’s car was found by Northwestern University secu- rity officers. Early the following morning, Dr. Goldstone received a phone cail from his wife in which she toid him that she would be home soon. He heard a voice in the background say, “Shut up bitch, teil him you'll be home in about an hour.” The victim asked Dr. Goldstone if he had called the police, and he told her to tei] the man whose voice he had heard that he had not informed the police. Officers investigating the incident at Jones’ apartment obtained the license number of the car and learned that the defendant had visited Jones. The police searched the area for the auto without success and periodically watched the defendant’s home, but the car was not located. On April 1, at 6 am., the defendant released the victim from the trunk of the auto. He gave her $1.25 and in- structed her to take a bus home and not to call the police. He then drove off. The victim, ignoring his instructions, ran to the porch of a nearby house for heip. The person who came to the door refused to allow her to enter, but he did call the police. The defendant, who had only driven around the block to see whether his instructions would be obeyed, returned and ordered the victim off the porch. He then took her to an abandoned garage and killed her, shooting her in the chest and head. There was medical evi- dence that the victim had been beaten once or more during her captivity. . The defendant was arrested at his home that afternoon while he was washing the trunk of his car. Early the next morning he gave a statement that was transcribed by a court reporter. In the statement, the defendant admitted to kidnaping, robbing and shooting the victim. A number of the contentions of the defendant concern the constitutionality of the death penalty statute (Ill. Rev. Stat. 1977, ch. 38, par. 9—1). The issues raised have been decided -adversely to him in recent holdings of this court, and there is no necessity of discussing them in detail now. This court has a number of times held that the grant of discretion to the prosecutor under the statute to ask for the death penalty is not unconstitutional. (£.g., People v. Davis (1983), 95 Ill. 2d 1, 28; People v. Szado (1983), 94 I. 2d 327, 351.) Too, we have heid that there is no unconstitu- tional vagueness in the statutory provision that the court sentence the defendant to death if the jury determines that “there are not mitigating factors sufficient to preclude the imposition of the death sentence” (IL Rev. Stat. 1977, ch. 38, par. 9—1(g)), or in the provision that the, absence of a “significant history of prior criminal activity” (Ill. Rev. Stat. 1977, ch. 28, par: 9—1(cX1)) is a mitigating factor. People v. Lewis (1981), 88 Ul. 2d 129, 144-46. This court also has held that the sentencing standards in the death penalty statute, which provide for the weigh- ing of mitigating factors against aggravating factors, do not offend due process. In People v. Brownell (1980), 79 IIl. 2d 508, 528-34, this court rejected a contention that the statute is constitutionally inadequate because it does not Set out specific standards as to the weight to be given to the aggravating and mitigating factors. Because the sen- tencing process upheld in Brownceil is a weighing process, we have judged that there is no need to impose a specific burden of proof upon the prosecution to show the absence of mitigating factors. (People v. Free (1983), 94 Ill. 2d 378, 421.) We have also rejected the contention that the statute is unconstitutional in permitting the jury to consider in the second phase of the sentencing proceeding nonstatutory aggravating factors (People v. Kubat (1983), 94 Ill. 2d 437, 504), and we have distinguished Henry v. Wainwright (5th Cir. 1981), 661 F.2d 56, cert. allowed and cause remanded (1982), U.S. 73 L. Ed. 2d 1326, 102 S. Ct. 2922, which the defendant here cites for his argument to the contrary. People v. Davis (1983), 95 IL 2d 1, 38; People v. Free (1983), 94 ll. 2d 378, 427. Too, we have rejected the argument that the sentencing scheme is defective in failing to provide procedures for comparative review. That review would entail providing for the collection of data in all murder cases in this State for a comparison between cases in which the death penalty has been imposed and those in which it was not. (People v. Ku- bat (1983), 94 Ll. 2d 437, 502-04.) Further, we have judged that the statute does not violate article I, section 11, of the Illinois Constitution (Il. Const. 1970, art. I, sec. 11), which provides that all penalties be determined in accordance with the seriousness of the offense and with the goal of re storing the offender to useful citizenship. People v. Davis (1983), 95 DL 2d 1, 28; People v. Free (1983), 94 Dl. 2d 378, 420-21; People v. Szabo (1983), 94 Il. 2d 327, 351; People v. Gaines (1981), 88 Ill. 2d 342, 380-82. The defendant also contends that his rights under the sixth amendment (U.S. Const., amend. VI) were violated by the trial judge’s refusal to allow him to serve as co counse!. Prior to entering the plea of guilty, the defense presented a motion asking that the defendant be allowed to serve as co-counsei at trial. The defendant said that he wanted ‘‘to represent (himse/f] with counsel.”” According to his attorney, the defendant desired to conduct some parts of the trial himscif. He did not want to appear pro se with a lawyer in an advisory role. The court denied the motion and required the defendant to choose between representing himseif or being represented by counsel. The defendant chose to have counsei represent him. The State contends that this question is moot and has been waived, because the defendant did not go to trial. He pleaded guilty. Whether the issue is moot or not it is clear that it has no merit. In People v. Ephraim (1952), 411 Ill. 118, a defendant claimed that his right to defend himseif pro se was denied by a judge’s appointment of counse! in his behalf. The trial court had initially granted the defend- ant leave to conduct his own defense when the public de- fender. who had been representing him withdrew from the case. Later, however, the trial court, on its own motion, appointed counse!, who represented the defendant at pre- trial hearings, at ‘rial, and in post-trial motions. This court’s review of the record showed that the defendant had accepted counse! without making any objec- tion. The acceptance of counsel, this court judged, was a waiver of the right to appear pro se. It expiained: “An accused has either the night to have counse/ act for him or the right to act himself. As pointed out in United States v. Mitchell ((2d Cir. 1943), 137 F.2d 1006}, it is obvious that both of those rights cannot be exercised at the same time. It follows that to allow a defendant to avail himself to the hilt of his right to counsel, then allow him to plead his right to defend himseif when the trial conducted by counsel produces an unsatisfactory result, would give far too great a chance to delay trial and to otherwise embarrass effective prosecution of crime. (See United States v. Gutterman [(2d Cir. 1945), 147 F.2d 540].) As indicated in the Mitchell case, a defendant must be required to make his election between the two rights at the proper time and in the proper manner.” People v. Ephraim (1952), 411 Dl. 118, 122. There is no reason to depart from the hoiding in Ephraim that a defendant has no right to both self-repre- sentation and the assistance of counsel. Federal courts have held that no such right exists under the United States Constitution (United States v. Halbert (9th Cir. 1981), 640 F.2d 1000, 1009; United States v. Daniels (5th Cir. 1978), 572 F.2d 535, 540), and the provision in our constitution re- garding the right of seif-representation and the assistance of counsel is identical in relevant part to the corresponding provision in the constitution in effect when EpAraim was decided. Compare I}. Const. 1970, art. I, sec. 8, with I. Const. 1870, art. IT, sec. 9. The defendant argues that his pica of guilty was not en- tered voluntarily and intelligently. Due process requires that a plea of ;rwilty not be accepted unless it appears from the record that the plea was made knowingly, intelligently and voluntarily. (Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct 1709.) To satisfy the require- ments of due process, our Rule 402 (73 Ll. 2d R. 402) pro- vides in part: “In hearings on pieas of guilty, there must be substan- tial compliance with the following: (a) Admonitions to Defendant. The court shail not ac- cept a plea of guilty without first. by addressing the defendant personally in open court, informing him of and determining that he understands the following: (1) the nature of the charge; (2) the minimum and maximum sentence pre- scribed by law, including, when applicabie, the pen- ality to which the defendant may be subjected because of prior convictions or consecutive sentences; (3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and (4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted 4 with the witnesses against him.” The defendant contends that his mght to due process was violated because when he entered his plea of guilty he ‘‘did not and could not have known the maximum penalty that his plea could subject him to.” This contention is simply not supported by the record. At the time the defense announced that the defendant wanted to change his initial piea of not guilty to guilty, the court informed the defendant of the charges.against him. The court then said: “I must advise you further that you can be tried before this court or before a jury. If you are found guilty of murder, under the circumstances of which case (sic] the death penalty could be imposed.” The court also informed the defendant of the prison terms he could be given for the other offenses. The prosecutor requested, “I ask that the defendant also be admonished as to the amount of years he could get on the charge of murder and that he might be eligible for a life imprisonment in addition to the death penalty, your Honor, as a possible penalty ***.” The court then stated, “I must also advise you [that] in addition to the possibility of the death penally under the Code as it exists in the State of Illinois, there is a further provision for the imposi- tion of sentence for the crime of. murder wherein it is pro- vided the minimum term to be imposed shall be not less than 20 years and not inore than 40 years.” The court ad- vised the defendant that by pleading guilty he was waiving his right to have a jury determine the question of guilt. The defendant signed a waiver stating that he was forego- ing his right to a jury trial and that he was pleading guilty to the charges. It is clear that the defendant was advised of the possi- bility that the death penaity could be imposed. The defend- ant contends that the judge’s language admonishing him that he could receive the penalty after being found guilty of murder implied that the death penalty could be imposed only after a trial, not upon a pica of guilty. This contention is not convincing. An admonition of the court must be read in a practical and realistic sense. The admonition is suffic- ient if an ordinary person in the circumstances of the ac- cused would understand it to convey the required warning. (People v. Krantz (1974), 58 MIL 2d 187, 193; People v. Doyle (1960), 20 Ill. 2d 163, 167.) The defendant could not reasonably have understood that by waiving the determina- tion of guilt by the trial court or by a jury he would avoid the imposition of the death penaity. Moreover, there is no doubt that the defendant was aware that he was eligibie for the death penalty even be fore he announced his intention to change his plea to guilty. Months before the plea of guilty was entered the de- fense filed a motion asking the State to disclose whether the death penalty would be sought. In open court, and in the presence of the defendant, the State answered that it need not make an announcement at that time. Too, on the morning that the plea of guilty was entered, the defense presented a written motion to compe! disclosure of the ag- gravating factors the prosecution would introduce at a death penalty’ hearing. The defendant, prior to acceptance of his plea, acknowledged to the judge that his attorneys had informed him of the consequences of pleading guilty. Another contention made by the defendant is that his sentence must be vacated because in reaching its verdict the jury relied upon an aggravating factor not in evidence. One of the statutory aggravating factors relied upon hy the prosecution was that “the murdered individual was killed in the course of another felony.” (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(XG).) The other factor relied upon was that “the iurdered individual was a witness in a prosecution against the defendant, gave material assistance to the state in any investigation or prosecution of the defendant, or was an eye witness or possessed other material evidence agninst the defendant.” (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(LK7).) Here, as he did in the trial court, the defendant contends that reliance upon the second factor should not have been permitted. The defendant bases this argument upon People v. Browneil (1980), 79 Ill. 2d 508. There the defendant was found guilty of murder, aggravated kidnaping and rape, and was sentenced by the court. The court found that un- der the evidence two aggravatng factors were present: (1) that the victim was killed in the course of two other felonies, (2) that the victim was an cyewitness against the defendant. Finding no mitigating factors to preciude the sentence of death, the court sentenced the defendant to death. According to Brownell’s written statement admitted at trial, the defendant had picked up the victim, Louise M. Betts, when she was hitchhiking. Armed with a knife, the defendant drove to an open area and raped the victim. The defendant then attempted to strangie her, but she was able to get up and run from him. The defendant caught and strangled her. This court judged that the second aggravating factor found by the court, that the victim was an eyewitness against the defendant, was not established. It pointed out that the trial judge apparently made the finding that the victim was an eyewitness simply on the ground that the victim could have later testified against the defendant as to the aggravated kidnaping and rape. This court explained that while the circumstances met the literal requirements of the aggravating factor, the General Assembly must not have intended that aggravating factor to be applied to such a case. The court said: “Otherwise, were we to adopt the trial court’s finding, this aggravating factor could apply in every prosecution for murder where another offense contemporaneously oc- curs because the victim could have been a witness against the defendant. Or, even more broadly, this aggravating factor could apply to every prosecution for murder since every victim, obviously, is prevented fror testifying agazinst the «dicfendant. \Ve do not think the Gencral As- sembiy intended the death penalty to be applied in every murder case, and, if it did, the General Assembly could eertainiy find a more dirvct way to express its intent than through this aggravating factor.’" (People v. Brownell (1989), 79 Ill. 2d 508, 526.) This court concjuderd that the General Assembly must not have intended the aggravating factor to be applied to a vic- tim who was, or who may be. a witness as to the offenses in the course of the murder. Instead, it must have been the legisiature’s intent ‘‘to include situations where, during an investigation or prosecution of « separate offense which has previously taken place, a witness is killed in an at- tempt to stymie the investigation or prosecution.” 79 Ill. 2d 508, 526. We think that the circumstances here are sufficiently different from those in Browneil to permit us to reach a different conclusion. Here, the evidence showed that after kidnaping and raping the victim, the defendant set her free with instructions to go directly home and not to call the police. She did not obey, however, and went to a house for help. The owner of the house toid her he would call the po- lice for her and he did so. The defendant was actuzily se- cretly watching her, and he then took her off and mur- dered her. The police were on thcir way to the scene in response to the resident’s phone call at the time of the kill- ing. By his own admission, the defendant acted as he did he- cause he knew Mrs. Goldstone was going to report the crimes to the police. A police investigator testified to a statement made by the defendant: “He said al] right, that he would talk, that he didn’t want to hurt Mrs. Guidstone, that he intended to leave her go, and that he in fact let her go on her promise that she would not got to the police. When he saw her go up to the door at 10ith and Maryland, he reajized there was no way that she wasn’t going to go to the police.” In a statement transcribed by a court reporter, the defendant said: ‘I drove further up the way on the same street and | got out of my car and [ waiked around the corner on 104th Street and I could see up to the next corner, which is Maryland. I saw her on someiody’s porch and she was talking to somebony, you know, cail the police, you know, this and that, whoever she was talking to.” Under these circumstances, the jury could have found both that the murder was committed ‘“‘in the course” of the other felonies, and that the vicum wus an eyewitness. There is no significant difference between the circum- stances here and a situation in which a defendant kidnaps and rapes the victim, sets her free, and at a later ume kiils her wile she is on her way to testify ayninst him. The lat- ter situation cleariy is within this court’s understanding of the stanitue considered in DrownelL We do not see why the General Assembiy would not have intended the circum- stances here to be within the statutory factor. The legisia- ture’s clear concern, to protect persons who could assist in the apprehension and prosecution of the accused (see Re- marks of Senutor Knuppel, dcbate of amendment 3 to H.B. 10, 80th Gen. Assem., June 1, 1977, at 21-25), is served by such an interprctation. The defendant’s next argument concerns the State's ex- ercise of peremptory challenges. Here tie victim and most of the prosecution's witnesses were white and the defend- ant was biack. According to a motion filed by the defend- art to discharge the jury selected, 28 of the 130 prospec- ave jurors examined and excused during the voir dire examination were hiack. Fifteen of the prospective black jurors were excused for cause on the State's motion and two were exciuded for cause on the defendant’s motion. The State used 11 peremptory cha.enges to exciude the other biacks. The defendant argued in his motion that his mghts un- der the sixth and fourteenth amendments were violated by the State’s exercise of the peremptory challenges. He con- tends that the court erred by not requiring the prosecution to show a justification, as the defendant puts it, for the pe- remptory challenges other than that of race. The defendant’s briefs in this court in addition contain statements regarding the composition of 43 juries in recent capital cases in this State. Over haif of the juries were all white. Most of the rest of the juries contained only one black. How many peremptory challenges were exercised by the defense and by the State is not indicated. There are no other materials to illustrate that the State has reguiarly and systematically through the exercise of peremptory challenges excluded blacks or other minorities in case after case. None of these materials, it would appear, were pre- sented (o the trial court. In People v. Dams (1983), 95 Ill. 2d 1, we rejected a contention hy the defendant that the State's exercise of pe- remptory challenges which resuited in an all-white jurv de prived the defendant of a fair and impartial jury. We noted that the contention was contrary to Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct $24, in which the Supreme Court held that an exercise of peremp- tory cnallenges which resulted in the selection of a jury composed of white jurors did not of itself show a consttu- tional violation. Under Swain. a constitutional issue of equa] protection coud not anse unless there was a sysicm- atic and purposefw exclusion of blacks because of race from juries in cuse after case. 380 U.S. 202, 223, 13 L.Ed. 2d 759, 774, 85 S. Ct. 824, 897. Ye noted too in Dams that though two States have not followed Swain when interpreting provisions of their con- stitutions (Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170; Penple v. Wheeler (1978), 22 Cal. 3d 258, 585 P2d 748, 148 Cal. Rptr. 890), we would adhere to the Supreme Court's view. The defendant here cites another decision, in which the exclusion of blacks through the use of peremptory chal- lenges was held to be a violation of Federal constitutional law. That case, People v. Paywe (1982), 106 Ill. App. 3d 1034, was decided by the third division of the First District of the appellate court. [t was held that the use of peremp- tory challenges by the State to exclude blacks from a jury -10- during voir dire because they are biack is a violation of the defendant’s right to a jury drawn from a fair cross section of the community. The Payne court relied upon Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, in which the Supreme Court held that it is Sunda- mental to the sixth amendment guarantee of an impartial jury that “the defendant in a criminal trial [have] the op- portunity to have the jury drawn from venires representa- tive of the community.” (419 U.S. 522, 537, 42 L. Ed. 2d 690, 702, 95 S. Ct. 692, 701.) The court in Taylor judged that the Louisiana jury system violated this fair-cross-sec- tion requirement because under the system a woman would not be selected for jury service unless she had previ- ously filed a written declaration expressing her desire to serve as a juror, which system resulted in women being called for jury service in grossiy disproportionate numbers considering the number of eligible women in the commu- nity. : The court in Payne believed that the use of peremptory challenges in particular cases to exclude members of any discrete | becatse of their group affiliations also was invalid, oeccuse otherwise “the constitutional mght to a jury drawn from a fair cross section of the comiaunity could he rendered a nuility through the uve of peremptory challenges.” (Pvonle v. Payne (1982), 106 Ill. App. 3d 1034, 1037.) The Payne court said that Swain was not control- ling in the circumstancus because in Swain the defendant's allenge was hased upon the equal protection clause in the fourteenth amendinent, not upon the sixth amendment. The Payne court noted that Swuin was decided before the Supreme Court held that the sixth amendment nights reiat- ing to jury trials were appiicable to the Slates, and before the court in Tuylor held that the fair-cross-section require- ment was a guarantee of the sixth amendment. 106 I]. App. 2d 1034, 1040-43. The division of the appellate court that decided Payne has followed its decision in subsequent cases. (People v. Gilliard (1983), 112 Ill App. 3d 799; People v. Gosderry (1982), 109 Ill. App. 3d 674.) Payne has been considered and rejected, however, by two other divisions of that court. People v. Newsome (1st Dist., 2d Div. 1982), 110 Ill. App. 3d 1043; Prople v. Teaque (ist Dist.,.1st Div. 1982), 108 Ili. App. 3d 891. Payne ioes not satisfactorily meet the questions which must be addressed in considering the probiem. «¥4 The Supreme Court in Swain concluded that the impor- tance of the peremptory challenge in obtaining an unbiased jury justified its use in particular cases against members of individual groups based on their group affiliations. The court stated: “In providing for jury trial in criminal cases, Alabama adheres to the common-law system of trial by an impar- tial jury of 12 men who must unanimously agree on a ver- dict, the system followed in the federal courts by virtue of the Sixth Amendment. As part of this system it pro- vides for challenges for cause and substitutes a system of strikes for the common-law method of peremptory chal- lenge. Alabama contends that its system of peremptory strikes—challenges without cause, without explanation and without judicial scrutiny—affords a suitavle and nec- essary method of securing juries which in fact and in the opinion of the parties are fair and impartial. This system, it is said, in and of itseif, provides justification for strik- ing any group of otherwise qualified jurors in any given case, whether they be Negroes, Catholics, accountants or those with blue eyes. Based on the history of this system and ils actual use and operation in this country, we think there is merit in this position.” Swarm uv. Alabama (1965), 380 U.S. 202, 211-12, 13 L. Ed. 2d 759, 767-68, 85 S. Ct. 824, 831. The court then traced the history of the pere:iptory challenge and found that it had “very old credentials.” (350 U.S. 2N2, 212, 13 L. Ed. 2d 759, 768, 85 S. Ct 824, S31.) Its function, the court explained, is to eliminate extremes of partiality on both sides and to assure the parties that the jurors will decide the case on the evidence alone. The availability of peremptories, the court pointed out, permits couns’] to ascertain the possibility of bias through probing questions at voir dire. and it removes the fear of arousing a juror’s hostility through examination and challenge for cause. The court also noted that “{ajlthough historically the incidence of the prosecutor’s challenge has differed from that of the accused, the view in this country has been that the system should guarantce ‘not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.’ 380 U.S. 202, 220, 13 L. Ed. 2d 759, 772, 85 S. Ct. 824, 835, quoting Hayes v. Jis- souri (1887), 120 U.S. 68, 70, 30 L. Ed. 578, 580, 7S. Ct 350, 351. The court concluced: “The essential nature of the peremptory challenge is -12- that it is one exercised without a reason stated, without inquiry and without being subject to the court's control. *** It is often exercised upon the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another [citation], upon a juror’s ‘habits and associations’ (citation], or upon the feeling that ‘the bare questioning (a juror’s] indifference may sometimes provoke a resentment’ [citation]. It is no less frequently exercised on grounds normally thought ir- relevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prose- cutor or defense counsel must decide is not whether a ju- ror of a particular race or nationality is in fact partial, hut whether one from a different group is less likely to be. It is well known that these factors are widely ex- plored during the ror dire, by hoth prosecutor and ac- cused [citations]. This Court has held that the fairness of trial by jury requires no less. (Citation.] Hence veniremen are not always judged solely as individuals for the pur- pose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiiiations, in the context of the case to be tried. With these considerations in mind, we cannot hoid that the striking of Negroes in a particular case is a de- nial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged with- out cause. To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical chance in the nature and operation of the challenge. “°* In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in con- nection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the pros- ecutor’s reasons for the exercise of his challenges in any given case.” 380 U.S. 202, 291)-22, 13 L. Ed. 2d 759, 772- 73, 85 S. Cl. §24, 836-37. We consider that the authority of Swain was not less- ened because of the recognition of a sixth amendment fair- cross-section requirement in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690. 95 S. Ct. 692. The court in Taylor held that it is fundamental to the sixth amend- ment righ! to a jury trial that the selection of a petit jury be from a representative cross section of the community. The issue, as the court put it, was, “whether the presence of a fair cross section of the community on venires, panels, -13- or lists from which pent junes are drawn is essential to the fulfillment of the Sixth Amendment’s guarantee of an impartial jury trial in cmminai prosecutions.” 419 U.S. 522, 526, 42 L. Ed. 2d 690, 696, 95 S. Ct. 692, 696. There was no retreat in the Taylor opinion from the view that it is an essential part of our system of trial by an impartial jury that both sides be allowed in particular cases to exercise peremptory challenges on any ground they se lect. It appears that the complaint addressed in Taylor is the systematic exclusion of a group from the jury system, not from any particular jury. This is in harmony with the suggestion in Swain that the systematic exclusion of liacks by peremptory challenges in case after case regardless of the particular circumstances invoived ‘vould raise a const- tutional issue. (S80 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 5. Ct. 824, 837.) Morcover, the limited character of the Taylor holding is clear from the following statement, which appears at the conclusion of the ypinion: “It should also be emphasized that in holding that petit juries must be drawn from a souree fairly represent: ative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the vamous distinctive groups in the ponula- tion. Defendants are not entitled to a jury of any particu- lar composition feitation]; but the jury wheels, pools of names, panels, or venires from which juries are drawn must not svstematienlly exclude distinctive grouns in the community and thereby fail to he reasonally representa- live theres f."” 419 TIS. 522, 538, 42 L. Ed. 2d 690, 702- 03, 95 S. Cu. 692, 702. The Court of Appeals of New York recently rejected a request that it no longer follow the holding of the Supreme Court in Swain. The court made clear its understanding that the holding in Swain had not been affected by Taylor: “The issue of minority representation on criminal juries has been the subject of several-decisions by the Su- preme Court. These decisions draw a critical distinction between the jury pool, which is the group of prospective jurors from which the litigants will select a jury to hear their particular case, and the jury that is ultimately cho- sen to serve. The Sixth Amendment requires that the jury pool be sciected from a representative cross section of the community (Tiler v. Louisiana ((1975)], 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692), and distinctive groups in the community may not be systematicaily ex- cluded from the pool. Once the jury pool is selected, how- ever, prospective jurors may then be exciuded through “14- the exercise of cause chaiienges and peremptory chai- lenges." (People v. MeCray (1982). 57 N.Y.2d 542, 545, 443 N.B.2d 915, 916-17, 457 N.¥.S.2d 441, 442-43.) Even the court in People v. Wheeler (1978), 22 Cal. 3d 258, 284-85, 583 P2d 748. 767, 148 Cal. Rptr. 890, 908, which we referred to earlier, recognized that if the Supreme Court were presented with the issue we are considering in terms of the sixth amendment fair~ross-section require- ment, the court probably would not decide the question dif- ferently than it did in Sivain. Parenthetically, we would observe that since it was fol- lowed in Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, Wheeler has been followed in few in- stances. (E.9., Slate v. Cresmn (1980), 94 N.M. 486. 612 P2d 716.) Most courts have declined to foilow it (S/ate v. Stewort (1479), 225 Kan. 410, 591 R2d 166; Lawrence v. Slate (1982), 51 Md. App. 575, 444 A.2d 478; State v. Sims (Mo. Ct. App. 1982), 639 S.W.2d 105; Commonwealth v. Hendersun (1981), 197 Pa 23. 488 A.2d 951; State v. Uceru (1982), RI. 450 A.2d 809; State v. Grady (1979), 93 Wis. 2d 1, 286 N.\.2d 607; see People ». Me- Cray (1982), 57 N.Y.2d 512, 443 N.E.2d 915, 457 N.Y.S.2d 44] (not mentioning Wheeler hut rejecting the Wheeler ap- proach); of. ocpel vr. United States (D.C. 1981), 424 A.2d 449, cert. dorierd (1981), 454 U.S. 1087, 70 L.Ed. 2d 483, 102 S. Cu SEO (judizing Svein dispesitive)). Two of the enwts expressly cniicized Wheeler as effectively eliminat- ing the peremptory challenge as a useful tool in assuring an impartial jury. Commonwenlth v. Zenderson (1981), 497 Pa. 23, 42S A.2d 951; Slude v. Grady (1979), 93 Wis. 2d 1, 286 iv. W.2d 607. There has been criticism of the reasoning of the Wheeler court. (See S. Saltzburg & M. Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representation, 41 Md. L. Rev. 337, 359-60 (1982).) It has been observed that lfeeler “has found surprisingly little support” and Uat “the overwhelming majority of courts still apply Sieain's systematic exclusion test.” Comment, The Sixth Amendment: Limiting the Use of Peremptory Challenqes, 16 J. Mar. L. Rev. 349, 358 (1983). Another contention of the defendant is that there was error in the excusing for cause of certain jurors. In Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, the Supreme Court held that prospec- tive jurors could not be excused for cause simply because -15- they had scruples aguinst the infliction of the death pen- alty, or voiced general objections to capital punishment The court did not hold improper, however, the exclusion of jurors who made it clear that they would automatically vote against the imposition of the death penalty regardless of evidence presented to them. The Supreme Court has not deviated from the rule in Witherspoon. The State can ‘“‘ex- clude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths.” Adams v. Teras (1980), 448 U.S. 38, 48, 65 L. Ed. 2d 581, 592, 100 S. Cu. 2521, 2528. The defendant claims that the exciusion of 12 prospec- tive jurors was in violation of [Witherspoon Our review of the record satisfies us that none of those jurors was ex- cluded simply for expressing general objections to the death penaitv. Contrary to the defendant's contentions, the exclusion of four of the 12 jurors had no reference to the death pen- ality. Mrs. Jean Samp was not chailemged by the State; she was excused at her own request. She believed in capital punishment but she told the court that she had a strong unwillingness to play God as a juror. She said that she hon- est!y felt that she could not be an unbiased juror, and that she would he partial to one side. The court excused her al- ter ascertaining that she could not lay aside her personal opinions and render an inpertial verdict on the evidence. Clearly a trial court can excuse a juror who states tat she cannot he impartial. £.g., People v. King (1973), 54 Ul. 2d 291. Lucila Kentris was excused not because of scrupies agninst the death penalty, but because the court judged that she lacked capacity to understand her duties as a ju- ror. She gave contradictory answers, and insisted that she would presume that the defendant was innocent despite his plea of guilty. The prospective juror’s obvious confusion during questioning justified the court’s statement, “I am not aware that she understood any of anyone's questions, *** for] the nature of the proceedings, despite the fact that it was explained to her by each attorney and by the court, and I'm not aware whether or not she comprehended what was occurring.” Joan Carter was also excused for reasons other than her feelings as to the death penalty. She was not asked about her attitude in that respect. She did state, though, that she did not know whether she could apply the law as 16 instructed in instances where sie disagreed with the law. Lf the law conilicted with her “inner feelings.” she said, she would foilow her feelings. Another juror, Lovell Wilkinson, was excused after stat- ing that he could not fairly and impartially serve as a ju- ror. He, in fact, believed in the death penalty, but was up set that it was not applied in every murder case after a finding of guilt. The restriction upon the exclusion of jurors expressed in Witherspoon was not applicable to the above-named ju- rors. !"itherspoon does not prohibit the exclusion of jurors who state that they will not be able to follow the law and render an impartial verdict based on the evidence. Adams v. Teras (1980), 448 U.S. 38, 65 L. Ed. 2d 581, 100 S. Ct 2521. The other jurors were properly excluded for cause. They did express views against capital punishment that woud require them, they said, to vote against the death penalty whatever the evidence presented to them might be. Hereafter is the relevant interrogation of these jurors. Juror Phillip Smith: “Q. [Prosecutor]: Okay, do vou have any conscientrous or religious scruples against the imposition of the death penalty, sir? A. Yes, | do. Q. You will be against applying that, is that correct? A. Yes. Q. No matter what the evidence says, in other words, mht? A. Yes. Q. (Defense Counse!]: Mr. Smith, the attitude you have about the death penalty, is that to the extent that any kind of a case, no matter how severe or how brutal it is? A. Yes. Q. [Defense Counsel]: Can you think of any crmme that may come out of the neighborhood that you live in that may he so brutal that the death penalty might be ap- propriate? A. No.” Juror Lois Marquez: “Q. [Prosecutor]: *** Do you, sir, have any conscien- tious or religious serupics against the imposition of the death penalty in a proper case? A. I don’t believe in capital punishment. -17- Q. [Blecause of your helief. do you believe that you could never impose capital punishment? A. I don’t think I could. Q. So what you are saying is that no matter what ev- idence would be shown to you, you cuuidn’t impose the death penalty, yes or no? A. No, I couldn't." Juror William A. Occomy told defense counsel that he did not consider: that he was qualified to serve as a juror in a sentencing proceeding. “Q. (Defense Counsel]: °** (Cjan you promise me that you will follow the law as the judge instructs you to do so and can you put aside the feeling that this decision is one that makes you certainly uncomfortabie, one that you would prefer not to do? A. Frankly speaking. no. Q. You don't feel you can follow the law as the judge gives it {o you? A. Frankly, well, let me put it this way, | guarantce you now, my nome will never be on that piece of paper for a death verdict.” Juror Ruthie Norwood: “Q. [Prosecutor]: All right, do you have any feelings with respect to capital punishment? A. I don’t believe in it. Q. Okay: are your feelings of the type that no matter what the evidence in the cuse showed, you would not be able to vote for cxpital punishment? A. Right, | wouldn't. Q. [Defense Counsel}: Mrs. Norwood, are you saying that in [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1701%3A1. Public record. Not legal advice.