CBA Record Nov-Dec 2019

“sick.” In his view, judges have a “special responsibility to stop racism, especially in the courtroom.” It was wrong, and he did not for a moment think otherwise. “But nobody thought anything could be done because of Swain ,” Rizzi says. “The easy way out would have been to point to Swain and affirm the conviction.” But he could not face himself (or his wife) if he were to do that. So he had to hold the practice of ex- cluding jurors solely on the basis of race unlawful under the United States Con- stitution. Reversal was likely. Criticism was certain. “The whole country would be against me,” he recalls feeling. And how would he get there? How to make his opinion something more than another ash on the heap of well- intentioned, but easily reversed opinions? How to decide? He could not simply ignore Swain and its progeny. It was the law of the land, wrong though it may have been. He re- members “taking a long time to figure out how to get around Swain .” After months of studying the Constitution, British legal history and U.S. Supreme Court prec- edent, Justice Rizzi found a way: focus exclusively on the Sixth Amendment, find everything “good” Swain had to say, and address the facts of this case. Courting Criticism Before publishing the opinion, he re- flected on the repercussions. “You have to be willing to accept criticism that would impact your whole career.” He moved for- ward. His opinion holds that the practice of excluding jurors on the basis of race was “repugnant” to the Sixth Amendment right of a criminal defendant to have “a jury drawn from a fair cross section of their community.” The state “may not at any stage of the jury selection process affirmatively frustrate this entitlement by systematically excluding” people of a par- ticular race “solely on the basis” of their race. Payne at 1036. The criminal trial, open to the public, is “more than merely a means of meting justice.” It is “an avenue for fulfilling the notion deeply rooted in the common law that justice must satisfy the appearance of justice.” Payne at 1038.

A beautifully worded opinion. Logi- cal. Thorough. Surely this would turn the tide. Right? Wrong. “I was criticized by my colleagues. Even judges down the hall refused to follow my opinion in sub- sequent cases.” Still, he held out a sliver of hope that the Illinois Supreme Court would see the light. But a few months later, he was reversed. See People v. Payne , 99 Ill.2d 135, 457 N.E.2d 1202 (1983). He remembers feeling “devastated” and “defeated.” “Told you so,” was a common refrain. Criticism from judges. Criticism from lawyers. Criticism at seminars and bar meetings. “You just have to put up with it. I got it right. They got it wrong.” In 1986, Justice Rizzi received the ultimate affirmation, without actually be- ing affirmed. The United States Supreme Court held that the exclusion of jurors on the basis of race violates the Fourteenth Amendment (equal protection). See Batson v. Kentucky , 106 S. Ct. 1712 (1986). The decision did not involve the Sixth Amend- ment, like Justice Rizzi’s opinion in Payne . But the reasoning is very similar. And many hailed Justice Rizzi as prescient, having reached a first-of-its-kind decision three years prior. For his part, Justice Rizzi “was just happy that the wrong be- ing done was finally being righted.” Conclusion Tough cases come in many forms and in- volve an array of emotions and principals. There is no formula for deciding them. But these examples do present common themes: Thorough understanding of the various points of view. Hard work to find guidance in the jurisprudence. And, above all, an unwavering commitment to the law. Anthony F. Fata is a partner in Cafferty Clobes Meriwether & Sprengel LLP, where he focuses on securities, commodities and antitrust matters. He is also a member of the Editorial Board of the CBA Record and an Adjunct Professor at Seton Hall University School of Law.

Constitution v. U. S. Supreme Court Precedent: Justice Dom Rizzi

(Note: Justice Rizzi is currently of counsel at Cafferty Clobes Meriwether & Sprengel, where the author is a partner.) What happens when African Americans are excluded from the jury in a criminal case, but the United States Supreme Court has already ruled that the Fourteenth Amendment does not prohibit race-based peremptory challenges? Retired Appellate Court Justice Dom Rizzi encountered such a case in People v. Payne , 106 Ill. App. 3d 1034, 436 N.E.2d 1046 (1982). The case came to the Appellate Court in 1981 after the defendant was found guilty of aggravated battery and armed violence. On appeal, the defendant argued that the prosecutor systematically, and over his counsel’s repeated objections, used peremptory challenges during the voir dire to exclude African Americans. At the time, this practice was common. It had been effectively condoned by the United States Supreme Court 18 years earlier in Swain v. Alabama , 380 U.S. 202 (1965). That decision, under the Four- teenth Amendment (equal protection), was interpreted time after time by Illinois and other courts as upholding race-based peremptory challenges. Chicago in the 1980s was no different. Judge Rizzi knew African Americans were being excluded in case after case on the basis of race. “Everyone knew it was going on. It was accepted,” he says. It made him

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