Filed November 21, 2001

BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

REPORT AND RECOMMENDATION OF THE HEARING BOARD

The hearing in this matter was held on June 27, 2001 at the offices of the Attorney Registration and Disciplinary Commission, Chicago, Illinois before a panel consisting of David F. Rolewick, Thomas P. Young and Matthew Bonds. Mary T. Robinson, the Administrator, served as counsel for the hearing. The Respondent was represented by William J. Martin and Paul C. Gridelli.

PLEADINGS

The Administrator filed a one-count complaint against the Respondent, John Joseph Hynes on September 6, 2000 alleging that he provided a false response to a question on an application for appointment to the office of associate judge. The question asked whether the Respondent's professional conduct or ability had been the subject of comment, favorable or unfavorable in a written opinion by any judge, court or other tribunal. The application provided "yes" and "no" boxes. The Respondent checked the "no" box. The complaint charged that the Respondent's answer was false because his professional conduct had been the subject of comment by the Illinois Appellate Court in two criminal cases he had prosecuted while serving as an Assistant State's Attorney for Cook County, Illinois. The appellate opinions reviewed, among other things, the Respondent's use of peremptory challenges to prospective jurors who were members of racial minorities.

The Respondent was charged with engaging in the following misconduct: conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional conduct; conduct which is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 771.

In his answer to the complaint, the Respondent admitted many of the factual allegations regarding his prosecution of the two criminal cases which resulted in the appellate court opinions cited by the Administrator, but denied that his professional conduct had been the subject of comment in those opinions. He denied providing a false answer on his application for judicial appointment, denied that he had any reason to know the answer he gave was false and denied all charges of misconduct.

EVIDENCE

At the hearing the Administrator called two witnesses, including the Respondent, and introduced fourteen (14) exhibits. The Respondent testified on his own behalf and presented nine additional witnesses.

The Administrator's initial witness provided "context", "background" and "the criminal law on the use of preemptory challenges to exclude minority jurors." Randolph Stone, an attorney with experience in the area of criminal law and who serves as the current director of the Mandell Clinic at the University of Chicago Law School, explained the use of peremptory challenges to "strike" jurors in criminal cases and outlined developments in the past fifteen years with regard to that process. Mr. Stone summarized the 1986 Supreme Court decision in Batson v. Kentucky, 476 U.S. 79 (1986). (Tr. 12, 24-33).

He testified that in Batson the Supreme Court reviewed the use of peremptory challenges to excuse minority jurors in criminal cases and reaffirmed earlier cases which recognized that the Equal Protection Clause forbids a prosecutor to challenge potential jurors solely on account of their race. In a departure from previous authority, which required a defendant to show a systematic pattern of exclusion involving a number of cases over a period of time, the Batson Court stated that a defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's own trial. (Tr. 29-31).

Mr. Stone testified that Batson sets forth a three-step procedure for determining whether discrimination has occurred in a particular case. First, a defendant must establish a prima facie case of discrimination by showing that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove members of the defendant's race from the venire. Second, once a prima facie showing is made, the burden shifts to the prosecutor to come forward with racially neutral reasons for excluding the jurors. Finally, he testified that the trial court would analyze the reasons to determine if they were racially neutral or if they were pretextual. Mr. Stone acknowledged a statement by the Illinois Appellate Court that no supreme court or appellate court has provided a definitive definition as to what is a race-neutral reason for excluding a prospective juror and therefore that determination is left to the discretion of the trial court on a case by case basis. (Tr. 32-33, 40).

Mr. Stone testified that the subsequent Supreme Court decisions, such as Powers v. Ohio, have further defined and explained the principles enunciated in Batson. In Powers v. Ohio, 499 U.S. 400 (1991) he opined, the Supreme Court held that a criminal defendant may object to race-based exclusions of jurors through peremptory challenges whether or not the defendant and the excluded jurors share the same race. Mr. Stone acknowledged that these decisions have spawned a "huge number of law review articles and scholarly debate about the implementation of Batson" and the difficulty of reconciling the character of peremptory challenges with the avoidance of racial discrimination. Mr. Stone stated, however, that cases subsequent to Batson have not questioned the underlying premise that excluding minority members of the venire for racial reasons constitutes racial discrimination. (37-42).

The Respondent testified. Concerning the specific issues raised in the Administrator's complaint, the Respondent stated that he was licensed to practice law in 1982 and began his practice that year as an Assistant State's Attorney in Cook County. He worked in several different divisions within the State's Attorney's office before being transferred to the Gang Prosecutions Unit in 1985. He was appointed supervisor of that unit in 1991 and remained in that position until 1999. The Respondent stated that a large part of his job entailed attending and speaking at community meetings in minority neighborhoods. At these meetings, he attempted to explain the court system and encourage people to sit on juries. (Tr. 43, 240-245).

The Respondent testified that during his tenure in the gang unit, he represented the State of Illinois in People v. Morales. Edward Morales and Daniel Padilla, both Hispanic, were charged with murder and brought to trial in 1987. During jury selection the Respondent and David Sabatini exercised nine of their peremptory challenges to excuse prospective minority jurors, two of which were Hispanic, five African-American, one Arab and one Pakistani. Defense counsel requested that the court conduct a hearing to determine whether the prosecutors could provide race-neutral explanations for their peremptory challenges. The motion was denied by the trial judge because precedent at that time required that the defendant be a member of the same racial group as the excused venire member. After the motion was denied, the prosecutors challenged an additional two African-American jurors and another Hispanic juror. (Ad. Ex. 12; Tr. 46-49).

...

Upon remand to the trial court in 1997, the Respondent explained, the prosecutors provided their reasons for the peremptory challenges made years earlier. The Respondent testified that the reasons he offered, on behalf of the State, were based upon his review of the transcripts of the voir dire examination from the initial trial. The sitting judge, who was not the judge who had conducted the trial, determined that the State provided race neutral reasons for its peremptory challenges and therefore affirmed Mr. Morales's conviction. (Ex. Tr. 13, 14; Tr. 66-69).

The Respondent testified that Mr. Morales appealed that ruling, and on September 30, 1999 the appellate court issued its decision in People v. Morales, 308 Ill.App.3d 162, 719 N.E.2d 261 (1st Dist. 1999). The court found that, as to two of the jurors, the prosecutors failed to provide nonpretextual race-neutral explanations for their challenges. The appellate court reversed the decision of the trial court and remanded the case for a new trial. (Admin. Ex. 3; Tr.92-93).

The Respondent stated that during his assignment to the Gang Prosecutions Unit, he also represented the State of Illinois in its case against Johnny Walls and Charles Byrd. The defendants, both of whom were African-Americans, were brought to trial in 1988 on charges of murder. During voir dire examination of the venire, the Respondent and Thomas Hennelly, on behalf of the State, peremptorily challenged several prospective black jurors. On the defendants' motion for mistrial, the trial judge determined that a prima facie case of racial discrimination had been made.