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Ed. 2d", "year": 1993, "opinion_index": 1 }, { "cite": "493 U.S. 1069", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11479296, 11479075, 11479556, 11479206, 11479372, 11479698, 11479412, 11479895, 11479480, 11479642, 11479739, 11479135 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/us/493/1069-04", "/us/493/1069-01", "/us/493/1069-08", "/us/493/1069-03", "/us/493/1069-05", "/us/493/1069-10", "/us/493/1069-06", "/us/493/1069-12", "/us/493/1069-07", "/us/493/1069-09", "/us/493/1069-11", "/us/493/1069-02" ] }, { "cite": "850 F.2d 1038", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1792569 ], "pin_cites": [ { "page": "1043" } ], "opinion_index": 1, "case_paths": [ "/f2d/850/1038-01" ] }, { "cite": "987 F.2d 215", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10509871 ], "opinion_index": 1, "case_paths": [ "/f2d/987/0215-01" ] }, { "cite": "137 Ill. 2d 195", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251719 ], "pin_cites": [ { "page": "215-16" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/137/0195-01" ] }, { "cite": "478 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "360" } ], "opinion_index": 1 }, { "cite": "106 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138824 ], "pin_cites": [ { "page": "333" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/106/0327-01" ] }, { "cite": "564 N.E.2d 784", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "787" } ], "opinion_index": 1 }, { "cite": "139 Ill. 2d 189", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574383 ], "pin_cites": [ { "page": "194-95" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/139/0189-01" ] }, { "cite": "479 U.S. 314", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6215700 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/479/0314-01" ] }, { "cite": "913 F.2d 1417", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539986 ], "pin_cites": [ { "page": "1423" } ], "opinion_index": 1, "case_paths": [ "/f2d/913/1417-01" ] }, { "cite": "230 N.E.2d 831", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "38 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2861276 ], "weight": 2, "pin_cites": [ { "page": "225" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/38/0223-01" ] }, { "cite": "382 N.E.2d 227", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "231", "parenthetical": "\"Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed\"" } ], "opinion_index": 1 }, { "cite": "73 Ill. 2d 7", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441461 ], "weight": 2, "pin_cites": [ { "page": "17" }, { "page": "16" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/73/0007-01" ] }, { "cite": "507 U.S. 725", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6237509 ], "weight": 9, "pin_cites": [ { "page": "732" }, { "page": "518" }, { "page": "734" }, { "page": "519" }, { "page": "733" }, { "page": "519" } ], "opinion_index": 1, "case_paths": [ "/us/507/0725-01" ] }, { "cite": "561 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "10-11" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 2215, "char_count": 67730, "ocr_confidence": 0.808, "pagerank": { "raw": 8.465185025920153e-08, "percentile": 0.48527964371668003 }, "sha256": "58e085d3c6e8c0f9f3b5e836c60ee8f9043fb1b9fd039d2bd17b35315d2524f5", "simhash": "1:0a943f0c3d27a5b6", "word_count": 11273 }, "last_updated": "2023-07-14T17:03:20.371410+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANKIE LANN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nDefendant Frankie Lann was convicted by a jury on charges of armed robbery, kidnapping, aggravated kidnapping, and aggravated battery arising out of events occurring on May 25, 1983, and was sentenced to 13 years\u2019 imprisonment. On a prior appeal, we affirmed defendant\u2019s convictions and sentence, but remanded the case for a Batson hearing to determine if the State improperly used its peremptory challenges to exclude African-Americans from the jury. People v. Lann (1990), 194 Ill. App. 3d 623, 551 N.E.2d 276, appeal denied (1990), 132 Ill. 2d 550, 555 N.E.2d 381.\nThe following facts were adduced at the Batson hearing before Circuit Judge John M. Mannion. Defendant and the victim were both African-Americans, as was at least one of the two witnesses called by the State against him. In using seven of its 10 peremptory challenges, six of the seven potential jurors excused by the State were African-Americans. The petit jury, including one alternate, consisted of eight white men, two white women, one African-American man, and two African-American women. The jury cards, which were admitted into evidence, establish that but for the following three similar characteristics, the potential jurors excluded by the State were a heterogeneous group: (1) as already noted, six of the seven were African-Americans; (2) six of the seven were women; and (3) all seven were unmarried. One of the arguments made by the prosecutor at the Batson hearing in opposition to defendant\u2019s racial discrimination claim and in justification of the State\u2019s claim as to the heterogeneity of the group was that five of the six of the excluded African-Americans were women.\nJudge Mannion held that defendant had not made out a prima facie case of racial discrimination under Batson, basing his decision on the following factors: (1) the percentage of African-Americans on the petit jury was almost identical to the percentage of African-Americans in Cook County; (2) the State used only 7 of its 10 peremptory challenges; (3) the State did not challenge three African-American venire members who ultimately formed one-fourth of the petit jury; (4) the State had in mind the type of juror that it was looking for; and (5) the judge had presided over several cases where the assistant State\u2019s Attorney in question was the prosecutor and, to his knowledge, the prosecutor had never even been accused of systematically excluding African-Americans.\nDefendant appeals Judge Mannion\u2019s determination that he did not make out a prima facie case of racial discrimination under Bat-son. He also alleges for the first time that the State violated Batson during his trial because it improperly used its peremptory challenges to exclude women from the petit jury, conceding that he did not object to the prosecutor\u2019s alleged gender discrimination during voir dire, in his post-trial motion, or in the original appeal of his conviction, nor during the Batson hearing after we remanded the case for that purpose.\nI\nA\nPrior to the United States Supreme Court\u2019s decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, a defendant was entitled to a reversal of his conviction in a case where the prosecutor had practiced purposeful racial discrimination in the selection of jurors only by establishing the State\u2019s systematic and intentional pattern of excluding venire members on the ground of race in \"case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be.\u201d (Swain v. Alabama (1965), 380 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837.) Batson, however, expressly overruled Swain and held that a defendant may establish a prima facie case of purposeful discrimination in the selection of the petit jury based solely on the prosecutor\u2019s exercise of peremptory challenges at the defendant\u2019s trial. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) In Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, the Supreme Court declared that the rule in Batson applies to all cases which were pending on direct review at the time that it handed down its Batson decision. This is such a case.\nBatson established a two-step procedure for resolving defendant\u2019s claim that the prosecution used its peremptory challenges in a racially discriminatory manner. First, the defendant must establish a prima facie case of purposeful discrimination in the selection of his jury, and if he or she succeeds in making such a case, the burden then shifts to the State to come forward with a race-neutral explanation for challenging each of the venirepersons. Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88, 106 S. a. at 1723.\nIn order to establish a prima facie case of discriminatory jury selection under Batson, a defendant initially had to show that he was a member of a cognizable racial group and that the prosecutor had exercised his peremptory challenges to remove members of the defendant\u2019s race from the venire panel. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) Subsequently, however, the United States Supreme Court, held in Powers v. Ohio (1991), 499 U.S. 400, 402, 113 L. Ed. 2d 411, 419, 111 S. Ct. 1364, 1366, that \"a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.\u201d In order to make a prima facie showing of discrimination after Powers, the defendant is required to raise only an inference that the prosecutor exercised peremptory challenges to remove venire members based upon race. (People v. Andrews (1992), 146 Ill. 2d 413, 424, 588 N.E.2d 1126, 1133.) In doing so, the defendant is entitled to rely on the fact that peremptory challenges \"constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.\u2019 \u201d (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723, quoting Avery v. Georgia (1953), 345 U.S. 559, 562, 97 L. Ed. 1244, 1247-48, 73 S. Ct. 891, 892.) The defendant must show that this fact and any other relevant circumstances raise an inference that the prosecutor peremptorily challenged venirepersons on account of their race. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723.\nAlthough the United States Supreme Court has not provided an exhaustive list of factors that a trial court should consider in deciding whether a defendant has made out a prima facie case of racial discrimination, the Illinois Supreme Court has consistently identified the following indicia as \"relevant circumstances\u201d which trial courts should consider in making the prima facie determination: (1) a pattern of strikes against African-American jurors; (2) the prosecutor\u2019s questions and statements made during voir dire examination and in exercising his challenges; (3) the disproportionate use of peremptory challenges against African-Americans; (4) the level of African-American representation in the venire as compared to the jury; (5) whether the excluded African-Americans were a heterogeneous group sharing race as their only common characteristic; and (6) the race of the defendant, the victim and the witnesses. People v. Coleman (1993), 155 Ill. 2d 507, 514, 617 N.E.2d 1200, 1204; People v. Pecor (1992), 153 Ill. 2d 109, 127, 606 N.E.2d 1127, 1135; Andrews, 146 Ill. 2d at 426, 588 N.E.2d at 1134; People v. Henderson (1990), 142 Ill. 2d 258, 287-88, 568 N.E.2d 1234, 1248-49; People v. Hooper (1989), 133 Ill. 2d 469, 508, 552 N.E.2d 684, 701-02; People v. Mahaffey (1989), 128 Ill. 2d 388, 412, 539 N.E.2d 1172, 1184; People v. Evans (1988), 125 Ill. 2d 50, 63-64, 530 N.E.2d 1360, 1365.\nOther factors occasionally identified by the supreme court as relevant to a prima facie Batson case are: (1) the trial court\u2019s knowledge of local conditions and local prosecutors (Andrews, 146 Ill. 2d at 435, 588 N.E.2d at 1134; Evans, 125 Ill. 2d at 67, 530 N.E.2d at 1366-67); (2) whether the prosecutor used all of his peremptory challenges (Hooper, 133 Ill. 2d at 508, 552 N.E.2d at 701-02; accord People v. Knott (1991), 224 Ill. App. 3d 236, 251, 586 N.E.2d 479, 490, appeal granted (1992), 145 Ill. 2d 640, 596 N.E.2d 634, vacated as moot (1993), ___Ill. 2d ___, 621 N.E.2d 611); and (3) whether the victim and the stricken venirepersons were of the same race. (Andrews, 146 Ill. 2d at 425, 588 N.E.2d at 1137.) Additionally, although the supreme court has warned that \"mere numbers\u201d do not establish a prima facie case (Henderson, 142 Ill. 2d at 258, 568 N.E.2d at 1248; Mahaffey, 128 Ill. 2d at 414, 539 N.E.2d at 1184), \"the exclusion of even just one minority venireperson on account of race is unconstitutional and *** require[s] reversal of the conviction below.\u201d (Andrews, 146 Ill. 2d at 434, 588 N.E.2d at 1138; People v. Harris (1989), 129 Ill. 2d 123, 175, 544 N.E.2d 357, 380.) Finally, this court reviews a trial court\u2019s determination as to whether a defendant has established a prima facie case of discrimination under the manifest weight of the evidence standard. Andrews, 146 Ill. 2d at 425, 588 N.E.2d at 1133; Evans, 125 Ill. 2d at 64, 530 N.E.2d at 1365-66.\nB\nDefendant contends that Judge Mannion\u2019s judgment that he did not present a prima facie case of racial discrimination was against the manifest weight of the evidence; on the contrary, he maintains, a consideration of the factors relevant to a prima facie determination leads to the conclusion that the evidence clearly establishes that the prosecutor peremptorily dismissed jurors on account of their race, and that the trial court considered factors irrelevant to a prima facie determination. We cannot agree.\nThe first factor relevant to our consideration is whether there was evidence of a \" 'pattern\u2019 of strikes against black jurors.\u201d (Evans, 125 Ill. 2d at 63, 530 N.E.2d at 1365.) In People v. Hope (1991), 137 Ill. 2d 430, 560 N.E.2d 849, vacated on other grounds (1991), 501 U.S. 1202, 115 L. Ed. 2d 966, 111 S. Ct. 2792, modified on reh\u2019g (1992), 147 Ill. 2d 315, 589 N.E.2d 503, the court explained:\n\"To create a pattern, strikes should do more than occasionally involve venire members of a certain race. The strikes should affect those members to such a degree or with such a lack of apparent nonracial explanation as to suggest the possibility of racial motivation.\u201d Hope, 137 Ill. 2d at 463, 560 N.E.2d at 864.\nAccord Andrews, 146 Ill. 2d at 429, 588 N.E.2d at 1134.\nIn this case, the prosecutor struck six of the nine African-Americans in the venire. We do not deem it to have been against the manifest weight of the evidence for the court to have concluded that these figures did not constitute a pattern of strikes against African-American venirepersons. Compare Henderson, 142 Ill. 2d at 288-91, 568 N.E.2d at 1249 (6 of 11 African-American venirepersons struck did not constitute a pattern of strikes); People v. Garrett (1990), 139 Ill. 2d 189, 204-05, 564 N.E.2d 784, 791 (six of nine African-American venirepersons struck did not constitute a pattern of strikes); People v. Brisbon (1989), 129 Ill. 2d 200, 230-31, 544 N.E.2d, 297, 312 (two of three African-American venirepersons struck did not constitute a pattern of strikes), with Harris, 129 Ill. 2d at 169-73, 544 N.E.2d at 378 (15 of 17 African-American venirepersons struck from jury constituted a pattern of strikes); People v. Mack (1989), 128 Ill. 2d 231, 237, 538 N.E.2d 1107, 1110 (13 of 14 African-American venirepersons struck constituted a pattern of strikes); People v. McDonald (1988), 125 Ill. 2d 182, 196-97, 530 N.E.2d 1351, 1357 (16 of 16 African-American venirepersons struck constituted a pattern); People v. Johnson (1990), 199 Ill. App. 3d 798, 803-04, 557 N.E.2d 565, 568 (15 of 17 African-American venirepersons struck constituted a pattern); People v. Seals (1987), 153 Ill. App. 3d 417, 422, 505 N.E.2d 1107, 1111 (six of seven African-American venirepersons struck constituted a pattern).\nThe statements made by the prosecutor during voir dire and while exercising his challenges constitute the second factor relevant to a prima facie determination. Defendant charges that the following statements made by the prosecutor during voir dire evidenced his intent to discriminate against African-Americans:\n\"Judge, I only have one thing to add. So far the Defense has excused six people, and .they are all White. I just want the record to reflect that.\n*** I would simply add that the defense excused nine individuals, of which seven were White, one Oriental or White.\u201d\nJudge Mannion did not comment on these statements when he made his ruling; clearly, however, they can be interpreted simply as an attempt to preserve the record instead of playing \"a game of black and white tag\u201d as suggested by defendant. This is especially true when the remarks are considered in light of the court\u2019s comments regarding its knowledge of the prosecutor\u2019s history gained in previous trials.\nThe third factor relevant to establishing a prima facie case is whether the prosecutor used a disproportionate number of peremptory challenges against African-Americans. This inquiry is different from the question of whether the prosecutor engaged in a pattern of strikes against African-Americans. The proportionality analysis compares the number of peremptories used against African-Americans versus the number used against whites, whereas the pattern analysis compares the number of African-Americans peremptorily challenged versus the number of African-Americans that could have been, but were not, struck by the State. See McDonald, 125 Ill. 2d at 196-97, 530 N.E.2d at 1357.\nIn the case at bar, the prosecutor used six peremptory challenges against African-American venirepersons and one against a white venireperson juror. There is no question, based on either precedent or common sense, but that the prosecutor\u2019s use of six of seven strikes against African-Americans constitutes a \"disproportionate use of peremptory challenges.\u201d See, e.g., Andrews, 146 Ill. 2d at 430, 588 N.E.2d at 1136 (eight of eight peremptories used against blacks disproportionate); People v. Gaston (1992), 227 Ill. App. 3d 486, 489, 592 N.E.2d 131, 133-34 (four of five peremptories used against blacks found to constitute a disproportionate use of peremptories); People v. Nicholson (1991), 218 Ill. App. 3d 273, 283, 577 N.E.2d 1313, 1320 (five of seven strikes against blacks disproportionate amount).\nThe fourth factor which we consider, and one that our supreme court has found to be \"highly relevant\u201d (Andrews, 146 Ill. 2d at 431, 588 N.E.2d at 1136; Hope, 137 Ill. 2d at 465, 560 N.E.2d at 865), is whether the venirepersons excluded by the prosecutor were a heterogeneous group sharing race as their only common characteristic. In the case at bar, the evidence demonstrates that the excluded venirepersons shared the following two common traits besides being African-American: (1) six of the seven excluded venirepersons were women; and (2) all of the excluded members were unmarried. While we hold in part II of this opinion that the former characteristic (gender) is not a constitutionally permissible basis for excluding potential jurors, our supreme court has found the latter characteristic (marital status) to be an acceptable reason for peremptorily challenging venire members. (Henderson, 142 Ill. 2d at 289, 568 N.E.2d at 1244.) Accordingly, we find it \"highly relevant\u201d that the excluded venire members shared a common characteristic besides being of the same race.\nThe fifth factor our supreme court has identified as important to establishing a prima facie determination is the level of African-American representation in the venire as compared to the jury. In this case, the percentage of African-Americans in the venire panel was approximately 32% (9 of 28), while the percentage of African-Americans on the petit jury was 23% (3 of 13). Our supreme court has identified such a 9% difference as \"slightly *** suggestive] [of] purposeful discrimination. \u201d (Henderson, 142 Ill. 2d at 290-91, 568 N.E.2d at 1250.) Therefore, we likewise consider the percentage difference here only slight evidence of discriminatory intent by the prosecutor.\nAnother factor that the supreme court has consistently taken into consideration in determining whether a defendant has presented a prima facie case is the race of the defendant, the victim and the witnesses. Here, it is uncontested that defendant, the victim, and at least one of the witnesses who testified were African-Americans. The Illinois Supreme Court has stated that \"in a case where both the defendant and victim are black, their racial characteristics do not warrant an inference, at the prima facie stage, that the prosecution discriminated against venire members who were black.\u201d Henderson, 142 Ill. 2d at 289, 568 N.E.2d at 1249.\nFinally, in considering the remaining factors which the supreme court has occasionally found to be pertinent to a prima facie determination, we note first that in employing his knowledge of local conditions, Judge Mannion observed that the percentage of African-Americans in Cook County as a whole was almost identical to the percentage of African-Americans on the petit jury: 25% to 23%. The judge also stated, with respect to his experience with local prosecutors, that he had never known the assistant State\u2019s Attorney in this case to discriminate in his use of peremptory challenges on the basis of race.\nTaking into consideration all of these facts, we hold that Judge Mannion\u2019s decision that defendant failed to establish a prima facie case of discrimination was not against the manifest weight of the evidence.\nII\nA\n1\nDefendant also argues that the prosecutor in this case violated Batson by using his. peremptory challenges to exclude women from the petit jury, an issue he has not raised heretofore in any of these proceedings. The State argues that Batson does not apply to gender-based discrimination, and that even if it does, defendant has waived such a claim by failing to raise it until this juncture in the case. Defendant urges us, in the event we find waiver, to notice any gender-based discrimination in the selection of his jury under the plain error provisions of Supreme Court Rule 615(a). 134 Ill. 2d R. 615(a).\nAddressing the State\u2019s waiver argument first, it is clear that defendant has waived, for purposes of appeal, the issue of gender discrimination, for a defendant must both object to an alleged error at trial and bring the error to the attention of the trial court in a post-trial motion in order to preserve the issue for appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129-30.) Our supreme court has recently found it necessary to reiterate what it has invariably held in several previous cases: that a defendant\u2019s failure to object to a prosecutor\u2019s use of a peremptory challenge before the jury is sworn results in a waiver of a claim that the challenge was impermissibly exercised. (Pecor, 153 Ill. 2d at 125, 606 N.E.2d at 1135; accord Henderson, 142 Ill. 2d at 283, 568 N.E.2d at 1246; People v. Andrews (1989), 132 Ill. 2d 451, 457-58, 548 N.E.2d 1025, 1028; Evans, 125 Ill. 2d at 61-62, 530 N.E.2d at 1364.) As the court explained in Andrews-. \"[requiring a timely objection before the jury has been sworn and the venire dismissed allows a trial court to conduct a hearing while the chosen and stricken venirepersons are still present and before the trial has begun.\u201d (Andrews, 132 Ill. 2d at 457-58, 548 N.E.2d at 1028.) In Pecor, the court reaffirmed this principle, first espoused in Evans, stating:\n\"[1]n People v. Evans (1988), 125 Ill. 2d 50[, 530 N.E.2d 1360], this court found that a defendant had waived the right to contest the State\u2019s peremptory challenge of a black juror by failing to object to that juror\u2019s challenge, even though the case was tried before Batson had been decided. In concluding this, the court noted that Batson requires that the defendant make a timely objection to the prosecutor\u2019s peremptory challenge. [Citations.]\u2019 We note that Powers requires that a defendant raise a legitimate and well founded objection[ ].\u2019 [Citation.] *** [Defendants [in other cases] who made no objection whatsoever cannot now simply create claims and go back to the trial court and attempt to prove a prima facie case of discrimination.\u201d Pecor, 153 Ill. 2d at 125-26, 606 N.E.2d at 1135.\nAs noted above, not until he brought the present appeal did defendant here object to any of the prosecutor\u2019s peremptory challenges on the ground that he was discriminating against venirepersons on the basis of gender. Accordingly, defendant has waived the issue.\n2\nWe agree with defendant, however, that despite his waiver, the unique circumstances of this case qualify for our recognizing the gender discrimination issue under the \"plain error rule.\u201d (134 Ill. 2d R. 615(a).) Generally, in criminal cases, that rule permits a reviewing court to consider an error not properly preserved for review when the evidence is closely balanced or the error is of such magnitude that the commission thereof denies the defendant a fair and impartial trial. (People v. Shields (1991), 143 Ill. 2d 435, 446, 575 N.E.2d 538, 543; People v. Young (1989), 128 Ill. 2d 1, 46-47, 538 N.E.2d 461, 471.) Since the waiver rule is one of administrative convenience rather than a jurisdictional bar (People v. Smith (1985), 106 Ill. 2d 327, 333, 478 N.E.2d 357, 360), we have the discretion to consider errors not properly preserved at trial (People v. McCullum (1977), 66 Ill. 2d 306, 315, 362 N.E.2d 307, 311; People v. Beard (1993), 263 Ill. App. 3d 1077, 1081; People v. Knop (1990), 199 Ill. App. 3d 944, 949, 557 N.E.2d 970, 973, appeal denied (1990), 135 Ill. 2d 562, 564 N.E.2d 843; People v. Burrows (1989), 183 Ill. App. 3d 949, 956, 539 N.E.2d 842, 846), and we may invoke the plain error rule sua sponte. People v. Davis (1991), 145 Ill. 2d 240, 251, 582 N.E.2d 714, 719.\nOur supreme court recently had cause to do exactly what we do here today when it employed the plain error rule in order to consider a challenge based on Batson, a claim which the defendant had indisputably waived in the circuit court. In People v. Hudson (1993), 157 Ill. 2d 401, 425, now Chief Justice Bilandic, writing for the majority of the court, rejected the State\u2019s argument that the defendant\u2019s failure to preserve his Batson claim precluded review of the issue, explaining:\n\"[T]his court has long recognized that the responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversarial nature of our system.\u2019 [Citations.] In light of the importance of the constitutional claim raised by defendant, we choose to review [his Batson claim] in the interest of justice.\u201d\nAlthough Hudson is the first instance in which our supreme court excused a defendant\u2019s waiver of an alleged Batson violation, that decisi\u00f3n is not a radical course change for the court, but rather represents merely a logical extension of the holdings in other cases in which it considered waived arguments that addressed alleged denials of vital constitutional protections. (See People v. Lucas (1992), 151 Ill. 2d 461, 490, 603 N.E.2d 460, 473 (invoking plain error rule to review the defendant\u2019s waived claim that he was denied his sixth amendment right to fully cross-examine State\u2019s witnesses); People v. Chandler (1989), 129 Ill. 2d 233, 242, 543 N.E.2d 1290, 1293 (invoking plain error to review the defendant\u2019s constitutional claim of ineffective assistance of counsel which was not properly preserved for appeal).) The same fundamental constitutional concerns encountered in Hudson are raised by defendant on appeal, albeit waived in both cases. Accordingly, consistent with Hudson, we exercise our authority to disregard his waiver and instead choose to consider defendant\u2019s contentions respecting the State\u2019s allegedly gender-biased use of peremptory challenges.\nMoreover, as we discuss in part B of this opinion, because we find that gender-based discrimination in selecting a jury disgracefully impugns the integrity of the judicial process, the imposition of plain error in the instant case is all the more proper. Henderson, 142 Ill. 2d at 311, 568 N.E.2d at 1259 (plain error may apply if \"remedying the error is 'necessary to preserve the integrity of the judicial process\u2019 \u201d) quoting People v. Herrett (1990), 137 Ill. 2d 195, 210, 561 N.E.2d 1, 17); see Young, 128 Ill. 2d at 46-47, 538 N.E.2d at 471 (purpose of plain error rule is to \"protec[t] and preserv[e] the integrity and reputation of the judicial process\u201d).\nAlthough our supreme court held in Evans that a defendant waives his right to make a Batson claim where he does not object to the exclusion of the potential juror during trial even though Batson had not yet been decided, we are indeed faced with a quite different situation here. Defendant\u2019s trial was in 1985, before Batson, Powers, and most important, any decision was handed down that even hinted that gender-discrimination concerns were implicated in the jury selection process. Had this or any other defendant objected to the State\u2019s use of its peremptory challenges to exclude venire members on account of their gender before those cases were decided, such a motion would sadly have been considered to be frivolous, if not, indeed, derisive, as no controlling authority existed at that time to support it.\nOur supreme court recognized as much in Pecor, where it rejected the State\u2019s argument that by not preserving the record for review, the defendant had waived his Batson claim based on the facts that he was white and that the excluded potential jurors were African-American. The Pecor court, after noting that Powers had not yet been decided at the time of the defendant\u2019s trial, stated:\n\"This was an instance where the law was clear: defendant could not raise the Batson claim because he had no standing to do so. Any attempt to make a record here, or persist in his claim where the law was clearly to the contrary, would have been, at the time, a waste of resources. We do not believe a defendant should have to anticipate an eventual change in the law in order to preserve an issue for review. Such a rule would require defendants to burden the courts with requests to make records of assertions where the law provided specifically that they had no such claim. Such a process would overly burden the courts, resulting in substantial delay and injustice.\u201d (Emphasis added.) Pecor, 153 Ill. 2d at 121, 606 N.E.2d at 1133-34.\nAccord Coleman, 155 Ill. 2d at 518, 617 N.E.2d at 1206 (\"At the time defendant was tried, he could not bring a [Batson] claim because the law provided otherwise, despite any awareness of what was then expected to bring a claim\u201d).\nThe reasoning employed by the supreme court in Pecor and Coleman applies with equal force here. It surely would have been an obvious waste of judicial resources for defendant to object to the exclusion of women from the petit jury in his trial in 1985, since clearly there would have been no basis whatsoever in law for it. Accordingly, in the exercise of our discretion to consider errors not properly preserved at trial (see McCullum, 66 Ill. 2d at 315, 362 N.E.2d at 311), we hold that the magnitude of the constitutional rights implicated in Batson, the effect gender discrimination has on the integrity of our court system, as well as fundamental fairness require us to excuse defendant\u2019s waiver and recognize his gender-based Batson claim.\nWe also hold that defendant has standing to raise his gender-discrimination claim. As stated above, in Powers, the Supreme Court held that a criminal defendant has standing to raise the equal protection rights of a potential juror who was improperly excluded even if the defendant is not of the same racial group as the excluded venireperson. (Powers, 499 U.S. at 402, 113 L. Ed. 2d at 419, 111 S. Ct. at 1366; see De Gross, 960 F.2d at 1436.) Our supreme court has interpreted Powers to mean that a defendant need only raise an inference that the prosecutor used his peremptory challenges in a racially discriminatory manner; the fact that the races of the defendant and the excluded juror are different does not preclude him from raising a Batson challenge. (Andrews, 146 Ill. 2d at 424, 588 N.E.2d at 1133.) Further, the court has recently held that Powers is retroactively applicable to all cases on direct review. (Pecor, 153 Ill. 2d at 126, 606 N.E.2d at 1136.) The principles enunciated in Powers, then, clearly apply in a gender-discrimination context as well.\nMuch of the dissent is devoted to its belief that the United States Supreme Court\u2019s analysis in United States v. Olano (1993), 507 U.S. 725, 123 L. Ed. 2d 508, 113 S. Ct. 1770, of Rule 52(b) of the Federal Rules of Criminal Procedure (Fed. R. Crim. P. 52(b)), is fully applicable to the Illinois equivalent contained in Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). We disagree, for it is important to note that the jurisdiction of our appellate court is bestowed upon it by our constitution (Ill. Const. 1970, art. VI, \u00a7 6; see also Hamilton Corp. v. Alexander (1972), 53 Ill. 2d 175, 290 N.E.2d 589 (reasoning that since the jurisdiction of the Illinois Appellate Court was provided by constitution, it could not be legislatively altered)), while the jurisdiction of the Federal courts of appeals is granted to them by Congress, which does so via its power \"[t]o constitute Tribunals inferior to the Supreme Court.\u201d (U.S. Const., art. I, \u00a7 8, cl. 9.) As a consequence, procedural rules promulgated by Congress, such as Rule 52, are mandatory precepts controlling the conduct and the power of those courts. As the United States Supreme Court has noted in this precise context, \"Rule 52 is, in every pertinent respect, as binding as any statute duly enacted by Congress, and [FJederal courts have no more discretion to disregard the Rule\u2019s mandate than they do to disregard constitutional *** provisions.\u201d Bank of Nova Scotia v. United States (1988), 487 U.S. 250, 255, 101 L. Ed. 2d 228, 237, 108 S. Ct. 2369, 2373-74.\nRule 52 describes those instances when, if at all, a Federal appellate court may forgive a defendant\u2019s waiver of an error committed at trial. In the absence of full compliance with that rule, any error not properly preserved cannot be considered by the reviewing court. Thus, under the Federal approach, waiver (or more precisely forfeiture) of most trial errors imposes limitations on the court of appeals\u2019 ability to correct or even to consider the error, as well as limiting the ability of the defendant to complain about it. Both will be silenced unless \"[t]he forfeited error *** is 'plain\u2019 and 'affect[s] substantial rights.\u2019 \u201d Olano, 507 U.S. at 732, 123 L. Ed. 2d at 518, 113 S. Ct. at 1777.\nIn contrast, under Illinois law, waiver poses no impediment to our consideration of errors made at trial. By this time, it has become rather common for our reviewing courts to say what we have previously stated, i.e., that \"[t]he waiver rule is one of administrative convenience rather than jurisdiction\u201d (People v. Smith (1985), 106 Ill. 2d 327, 333, 478 N.E.2d 357, 360; accord Leone v. City of Chicago (1993), 156 Ill. 2d 33, 41, 619 N.E.2d 119, 123 (Miller, C.J., dissenting); People v. Burson (1957), 11 Ill. 2d 360, 143 N.E.2d 239; People v. Torres (1993), 252 Ill. App. 3d 567, 623 N.E.2d 1029; People v. Hayes (1977), 54 Ill. App. 3d 617, 370 N.E.2d 68), a legal principle which has no counterpart in the Federal court system. It has been recognized in this State that the waiver rule is addressed only to the parties and serves to warn them that, except in limited instances, if they fail to properly preserve an issue, they are not entitled to appellate review of it. (People v. Lowe (1992), 153 Ill. 2d 195, 606 N.E.2d 1170; see also People v. Walsh (1981), 101 Ill. App. 3d 1146, 1149, 428 N.E.2d 937, 940 (\"The waiver rule, however, is not a limitation upon the reviewing court but an admonition to the parties\u201d).) This view of waiver explains the \"plain error rule\u201d quotation taken by the dissent from People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227. The Precup court, by using the cited language, was not rebuking the appellate court for entertaining an issue which had been waived and which did not meet Olano\u2019s standard for plain error, but rather was advising the defendant why it declined, in its discretion, to consider an alleged error which had not been preserved for appeal.\nThe supreme court, in promulgating the provisions of Rules 366(a) and 615(a) (134 Ill. 2d Rules 366(a), 615(a)), has granted us the authority we need to excuse defendant\u2019s waiver of this issue and reach its merits. In Hux v. Roben (1967), 38 Ill. 2d 223, 230 N.E.2d 831, the court found that the appellate court properly resolved a dispute before it by means of a defense which had not been presented by the defendant. In the supreme court the plaintiff challenged that judgment, arguing that the appellate court was powerless to grant this remedy since it had not been asserted by the defendants. The court rejected the plaintiff\u2019s contention and held that Rule 366(a) or Rule 615(a), its functional equivalent in criminal appeals, empowered the reviewing court \"to override the considerations of waiver that stem from the adversary character of our system,\u201d in order to achieve its paramount \"responsibility *** for a just result and for the maintenance of a sound and uniform body of precedents.\u201d Hux, 38 Ill. 2d at 225, 230 N.E.2d at 832; see also People v. McAdrian (1972), 52 Ill. 2d 250, 253, 287 N.E.2d 688, 690 (\"[The waiver] rule has not been universally applied[, for t]here are matters and rights which are so fundamental that they must be considered, whenever initially raised\u201d).\nIn Norberg v. Centex Homes Corp. (1993), 247 Ill. App. 3d 267, 616 N.E.2d 1342, we invoked Rule 366(a) and Hux to reach the waived yet important question of whether our supreme court\u2019s decision in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, was to be applied either retroactively or prospectively, even though we realized that the rule would be used to set, as opposed to maintain, precedent. Nevertheless, we did so because we considered the issue in desperate need of an answer. In the case at bar, we are confronted with an issue which, it is to be hoped, is at least as important as that in Norberg, i.e., whether we as a State are willing to recognize that women are entitled to full participation in our society and, in this case, that they will not be denied the right to serve as jurors, one of the most basic and essential rights and duties of a citizen, solely on the basis of their gender. We should not be deterred from vindicating this vital right of women merely because the issue was not presented in the hypertechnical legal package the dissent thinks necessary. Therefore, in the interests of justice, we exercise the power given us by Rule 615(a) as interpreted by Hux and reach the question presented for our review.\nB\nIn addressing the merits of defendant\u2019s gender-based Batson argument, we first note that while neither the United States Supreme Court nor the Illinois Supreme Court has decided as yet whether the Federal Constitution prohibits gender as well as racial discrimination in the use of peremptory challenges, several courts around the nation have addressed the issue and have reached divergent results. Compare United States v. De Gross (9th Cir. 1990), 913 F.2d 1417 (Batson applies to gender discrimination), aff'd on reh\u2019g en banc (9th Cir. 1992), 960 F.2d 1433; Di Donato v. Santini (1991), 232 Cal. App. 3d 721, 283 Cal. Rptr. 751 (same); State v. Levinson (1990), 71 Haw. 492, 795 P.2d 845 (same); Tyler v. State (1993), 330 Md. 261, 623 A.2d 648 (same); Commonwealth v. Hyatt (1991), 409 Mass. 689, 568 N.E.2d 1148 (same); State v. Gonzales (App. 1991), 111 N.M. 590, 808 P.2d 40 (same); People v. Blunt (1990), 162 A.D.2d 86, 561 N.Y.S.2d 90 (same); City of Mandan v. Fern (N.D. 1993), 501 N.W.2d 739 (same); State v. Burch (1992), 65 Wis. App. 828, 830 P.2d 357 (same), with United States v. Broussard (5th Cir. 1993), 987 F.2d 215 (Batson does not apply to gender discrimination); United States v. Hamilton (4th Cir. 1988), 850 F.2d 1038 (same); Ex Parte Murphy (Ala. 1992), 596 So. 2d 45 (same); Tucker v. State (1993), 313 Ark. 624, 855 S.W.2d 948 (same) overruled on other grounds by Missildine v. State (1993), 314 Ark. 500, 863 S.W.2d 813; Hannan v. Commonwealth (Ky. App. 1989), 774 S.W.2d 462 (same); State v. Adams (La. Ct. App. 1988), 533 So. 2d 1060 (same); State v. Pullen (Mo. App. 1991), 811 S.W.2d 463 (same); State v. Culver (1989), 233 Neb. 228, 444 N.W.2d 662 (same); State v. Oliviera (R.I. 1987), 534 A.2d 867 (same).\nWe agree with those decisions which have held that Batson applies to gender-based discrimination, for we find that a defendant\u2019s right to be tried before a jury chosen free of gender discrimination is no less important than his right to be tried before jurors who are chosen free of racial discrimination; the equal protection clause is offended by both forms of exclusion. Indeed, one must wonder what vitality the equal protection clause retains if it is to be read to countenance the deliberate manipulation of our criminal justice system by allowing litigants to exclude venirepersons from jury service on the basis of either race or gender. Since \"Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial\u201d (Batson, 476 U.S. at 87, 90 L. Ed. 2d at 81, 106 S. Ct. at 1718), we fail to apprehend the relevance of a person\u2019s gender to his or her fitness to serve as a juror, a subject more appropriately consigned to courthouse folklorists.\nIt needs no suffragette come from the grave to remind us that the history of our jury system has been marked by the continual, systematic, pervasive, and, more sadly, State-sanctioned exclusion of women.\n\"At common law, women were excluded from juries based on the doctrine of propter defectum sexus, literally, the 'defect of sex.\u2019 2 William Blackstone, Commentaries *362. In 1880, the Supreme Court declared the exclusion of blacks from jury service to be unconstitutional, but noted that such service might be limited to men. (Strauder v. West Virginia (1880), 100 U.S. 303, 310, 25 L. Ed. 664, 666.) In Hoyt v. Florida (1961), 368 U.S. 57, 82, 7 L. Ed. 2d 118, 122, 82 S. Ct. 159, 162, the Supreme Court held that excluding women from jury service was neither a due process nor an equal protection violation because there was a rational basis for it \u2014 that women are still regarded as the center of home and family life.\u2019 Id. at 82. It was not until 1975 that the Supreme Court held that systematically excluding women from juries violates defendants\u2019 Sixth Amendment rights. See Taylor [v. Louisiana (1975), 419 U.S. 522, 530-31, 42 L. Ed. 2d 690, 698, 95 S. Ct. 692, 698.]\u201d United States v. De Gross (9th Cir. 1992), 960 F.2d 1433, 1438 (holding unconstitutional both the female defendant\u2019s use of a peremptory challenge of a male juror and the prosecution\u2019s peremptory challenge of a female juror).\nGovernment-condoned exclusion of women from jury service was by no means endemic to United States Supreme Court jurisprudence. For example, even after they had gained the right to vote, following a long and arduous campaign that led to the ratification of the nineteenth amendment to the United States Constitution, women were still being barred from serving on juries on the ground \"that the word 'electors,\u2019 as used in the statute [providing for the appointment of a jury commission and the making of jury lists] means male persons, only, and the petitioner was not entitled to have her name replaced upon the jury list of Cook county.\u201d People ex rel. Fyfe v. Barnett (1925), 319 Ill. 403, 410, 150 N.E. 290, 292; accord Commonwealth v. Welosky (1931), 276 Mass. 398, 177 N.E. 656.\nWhen the barons wrested it anew from King John on the meadow at Runnymede, the provision of the 39th clause of the Magna Carta was already ancient law: that \"no freeman shall be arrested or imprisoned *** except by the lawful judgment of his peers,\u201d a precept that has been regarded as the indefeasible right of all Americans since long before we attained nationhood. Unless we are now to revert to that aberrant period in our history when our courts were holding that the term \" 'peers\u2019 means male jurors, only,\u201d (Fyfe, 319 Ill. at 410, 150 N.E. at 292), we cannot suffer a State-condoned practice of allowing litigants to exclude venirepersons from jury service on the basis of gender.\nFurthermore, gender discrimination in the context of jury selection is more pernicious under our State Constitution than it is under Batson and the body of case law that it has generated. The equal protection clause contained in the 1970 Illinois Constitution provides:\n\"The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.\u201d Ill. Const. 1970, art. I, \u00a7 18.\nIn People v. Ellis (1974), 57 Ill. 2d 127, 311 N.E.2d 98, our supreme court delineated the scope of that clause as follows:\n\"In contrast to the Federal Constitution, which, thus far, does not contain the Equal Rights Amendment, the Constitution of 1970 contains section 18 of article I, and in view of its explicit language, and the debates, we find inescapable the conclusion that it was intended to supplement and expand the guaranties of the equal protection provision of the Bill of Rights and requires us to hold that a classification based on sex is a 'suspect classification\u2019 which, to be held valid, must withstand 'strict judicial scrutiny.\u2019 \u201d (Ellis, 57 Ill. 2d at 132-33, 311 N.E.2d at 101.)\nIt bears emphasizing, then, that under our State Constitution, gender-based classifications are accorded a higher level of scrutiny than they receive under the fourteenth amendment of the United States Constitution.\nWe also find that gender discrimination in jury selection impugns the integrity of the judicial process, for the reason that Batson implicates not only the defendant\u2019s right to be tried before a jury chosen free of sex discrimination, but also the right that eligible venirepersons have to serve as jurors, whatever their gender, and that the societal interest in both of these rights is equally vital to the proper functioning of our criminal justice system. Nowhere is the concern that discrimination in the courtroom raises questions about the integrity of our system of justice brought out more forcefully than in Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364, where the Court held that a prosecutor\u2019s discriminatory use of peremptory challenges harms not only the defendant and the excluded jurors, but the community at large as well. (Powers, 499 U.S. at 402, 113 L. Ed. 2d at 419, 111 S. Ct. at 1368.) Justice Kennedy explained:\n\"The opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system. [Citations.]\n'The jury system postulates a conscious duty of participation in the machinery of justice ... One of its greatest benefits is in the security it gives the people that they, as jurors actual or possible, being part of the judicial system of the country can prevent its arbitrary use or abuse.\u2019 [Citation.]\nJury service preserves the democratic element of the law, as it guards the rights of the parties and insures continued acceptance of the laws by all of the people. [Citation.] It 'affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for the law.\u2019 [Citation.] Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.\u201d Powers, 499 U.S. at 406-07, 113 L. Ed. 2d at 422-23, 111 S. a. at 1368-69.\nAccord Batson, 476 U.S. at 87, 90 L. Ed. 2d at 81, 106 S. Ct. at 1718; see also Georgia v. McCollum (1992), 505 U.S. 42, 49-50, 120 L. Ed. 2d 33, 45, 112 S. Ct. 2348, 2354 (\"[I]f a court allows jurors to be excluded because of group bias, it is a willing participant in a scheme that could undermine the very foundation of justice \u2014 our citizens\u2019 confidence in it\u201d).\nBased on the foregoing analysis, we conclude that Batson applies to gender discrimination in the selection of a jury; moreover, we recognize defendant\u2019s gender Batson claim here because, if proved, it is an error of such extent under the Illinois and the United States Constitutions that it not only causes a defendant cognizable injury, but it also harms the excluded jurors, whose gender comprises at least half of all eligible persons in our State, by depriving them of a significant opportunity to participate in public life, casts doubt on the integrity of the judicial process, and places the fairness of the criminal proceeding, indeed, of the criminal justice system itself, in doubt.\nC\nThe final question pertinent to defendant\u2019s gender discrimination claim under Batson is whether a remand for a new hearing is necessary. The facts here illustrate that although four women served on the petit jury, six of the seven venirepersons excluded by the State were women. Furthermore, the State itself pointed out, while refuting the defendant\u2019s racial discrimination claim, that five of the six excluded African-Americans were women. However, there also existed another heterogeneous characteristic of the stricken venirepersons: each was unmarried. In light of this evidence in the record, we find remandment necessary in order to give defendant the opportunity to establish a prima facie case, if he can, of gender discrimination in the State\u2019s use of its peremptory challenges, and if such a case is made, the State be given the opportunity to advance gender-neutral reasons, if any it has, for excusing the venirepersons in question. See Coleman, 155 Ill. 2d at 518, 617 N.E.2d at 1206 (refusing to decide Batson claim on record before it and instead remanded for Batson hearing because purpose of retroactive application of Batson is to provide a defendant with an opportunity to make a record and establish a prima facie case of discrimination under factors implicated in a Batson analysis).\nFor all of the foregoing reasons, we affirm the trial court\u2019s determination that defendant failed to present a prima facie case of racial discrimination under Batson. However, we remand the cause to the trial court to conduct a Batson hearing in order to determine whether the State improperly exercised its peremptory challenges to exclude women from the petit jury.\nAffirmed in part; remanded with instructions.\nMcCORMICK, J., concurs.\nCircuit Judge Lawrence Genesen, who presided over defendant\u2019s trial in 1985, retired before the Batson hearing was held in this case.\nOne of the excluded venire members was actually separated from her husband.\nDefendant contends that Judge Mannion \"collapsed\u201d the Batson hearing by allowing the prosecutor to articulate race-neutral explanations for his peremptory challenges at the prima facie stage. (See Hernandez v. New York (1991), 500 U.S. 352, 356, 114 L. Ed. 2d 395, 403, 111 S. Ct. 1859, 1864; People v. Mitchell (1992), 152 Ill. 2d 274, 289, 604 N.E.2d 877, 886.) Defendant\u2019s argument is without warrant. It is apparent from the record that the State was merely asserting that the evidence as to one of the factors our supreme court has found highly relevant to a prima facie case of racial discrimination, i.e., the heterogeneity of the excluded venirepersons, militated against defendant\u2019s position.\nIn addition, we further note that Hudson simply affirms a prevalent practice in this court where we have consistently recognized that, like other claims on appeal, Batson challenges are amenable to plain error analysis. E.g., Beard, 263 Ill. App. 3d at 1079; People v. Batchelor (1990), 202 Ill. App. 3d 316, 321-22, 559 N.E.2d 948, 952, appeal denied (1990), 135 Ill. 2d 559, 564 N.E.2d 840; People v. Lott (1990), 196 Ill. App. 3d 967, 972, 554 N.E.2d 569, 572, appeal denied (1990), 132 Ill. 2d 551, 555 N.E.2d 382; People v. Mitchell (1987), 163 Ill. App. 3d 58, 69, 516 N.E.2d 500, 507, appeal denied (1988), 119 Ill. 2d 567, 522 N.E.2d 1252, People v. Brown (1987), 152 Ill. App. 3d 996, 998-99, 505 N.E.2d 397, 398; accord Ex parte Adkins (Ala. 1992), 600 So. 2d 1067, 1068-69; State v. Davis (Mo. App. 1992), 830 S.W.2d 469, 472.\nThe dissent scolds us for invoking the plain error rule to address an issue which is different from the precise one for which we previously remanded this cause. However, we find no fundamental difference between a gender-based Batson claim and one based on race, for both clearly and precisely pertain to the issue of impermissible discrimination in the jury selection process. More important, however, it was the State, during the Bat-son hearing on remand, that introduced the gender-discrimination issue into this case in seeking to justify its use of peremptory challenges against African-Americans, pointing out that the rejected venirepersons shared the common characteristic of being women. We are simply saying that the State may not run with the hares and the hounds at one and the same time.\nIt is also interesting to note that until the adoption of the 1962 Judicial Article amending the 1870 Constitution, the Appellate Court of Illinois, like the Federal intermediate courts, was a creature of the legislature, and the contours of its jurisdiction depended upon legislative grant. See Scott v. Freeport Motor Casualty Co. (1942), 379 Ill. 155, 39 N.E.2d 999; Gallagher v. People (1904), 207 Ill. 247, 69 N.E. 962.\nEven in the absence of Hux as precedential authority, we would nevertheless be compelled to decide this case no differently than we do here; and we would further respond to the dissenter\u2019s constrictive implementation of waiver by bringing to his attention the sagacity of Spain\u2019s greatest twentieth century poet Antonio Machado, who wrote:\n\"Caminante, no hay camino, se hace camino al andar. Al andar se hace camino.\u201d\nwhich, translated, instructs:\n\"Wayfarer, there is no way, you make the way as you go. As you go, you make the way.\u201d\nProverbios y cantares (Proverbs and Song Verses) reprinted in Selected Poems of Antonio Machado 142-43 (Alan B. Trueblood trans. 1982).\nThe Court has recently granted a writ of certiorari to determine whether Batson applies to gender-based discrimination. J.E.B. v. State (Ala. App. 1992), 606 So. 2d 156, cert, granted (1993), 508 U.S. 905, 124 L. Ed. 2d 242, 113 S. Ct. 2330.\nOur recent holding that Batson applies to gender-based discrimination in People v. Mitchell (1992), 228 Ill. App. 3d 917, 593 N.E.2d 882, was not upheld by our supreme court (People v. Mitchell (1993), 155 Ill. 2d 344, 614 N.E.2d 1213), because it held that it was unnecessary for us to reach that constitutional question, as the cause could have been determined on other grounds. Mitchell, 155 Ill. 2d at 356-57, 614 N.E.2d at 1218.", "type": "majority", "author": "JUSTICE SCARIANO" }, { "text": "PRESIDING JUSTICE DiVITO,\nconcurring in part and dissenting in part:\nI agree with the majority that the circuit court\u2019s determination that defendant failed to establish a prima facie case of racial discrimination in the State\u2019s use of its peremptory challenges was not against the manifest weight of the evidence. I do not agree, however, with the majority\u2019s decision to invoke the plain error exception to the waiver rule in this case, and to remand for a hearing to determine whether there was error, even though in a proper case I would extend Batson to gender-based discrimination. Therefore, I must respectfully dissent from that portion of the majority\u2019s opinion.\nI\nIllinois courts have always required that both the \"plain\u201d and the \"error\u201d limitations on plain error application be satisfied. (E.g., People v. Precup, 73 Ill. 2d at 17, 382 N.E.2d at 231 (\"Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed\u201d).) The majority does not make a finding that \"error\u201d occurred here and, of course, it cannot proclaim as \"plain\u201d an error it has not found. Thus, despite its \"plain error\u201d analysis, the majority, having found no plain error, remands the matter to the circuit court for its determination of whether error occurred and, presumably, whether that error was plain. This result cannot be justified by the plain error exception to the waiver doctrine.\nIndeed, the majority\u2019s decision represents an unprecedented and undue expansion of the plain error exception. My research has not disclosed one Illinois case that invokes the plain error rule, as the majority does here, not to declare that error has occurred and that reversal or remand for a new trial is mandated, but to remand for the very purpose of determining whether error occurred.\nIn United States v. Olano (1993), 507 U.S. 725, 123 L. Ed. 2d 508, 113 S. Ct. 1770, while noting that a constitutional or any other right may be forfeited by the failure to timely assert the right, the United States Supreme Court provides significant guidance for appellate review of claims based upon plain error. The Court\u2019s discussion is fully applicable to Illinois plain error analysis, for it interprets and applies Rule 52 of the Federal Rules of Criminal Procedure, which is identical to the plain error provisions that apply to this case through Illinois Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). In Olano, the Court emphasizes that a reviewing court\u2019s authority created by plain error principles is circumscribed by three limitations: \"There must be an 'error\u2019 that is 'plain\u2019 and that 'affectfs] substantial rights.\u2019 \u201d (Olano, 507 U.S. at 732, 123 L. Ed. 2d at 518, 113 S. Ct. at 1776.) After pointing out that \"plain\u201d is synonymous with \"clear\u201d or \"obvious,\u201d the Court states, \"[a]t a minimum, [a reviewing court] cannot correct an error pursuant to [the plain error rule] unless the error is clear under current law.\u201d Olano, 507 U.S. at 734, 123 L. Ed. 2d at 519, 113 S. Ct. at 1777.\nThe majority opinion here, through constitutional interpretation, announces a rule prohibiting gender discrimination in the selection of juries in Illinois. It is obvious that what is first announced in this opinion cannot be said to have been the \"current law.\u201d Thus, what the United States Supreme Court has characterized as a minimum requirement for plain error analysis is lacking.\nMoreover, the majority\u2019s plain error analysis is fundamentally flawed because it ignores both the \"error\u201d and the \"plain\u201d limitations on its review powers, focusing instead on the \"substantial rights\u201d limitation. Thus it justifies its application of plain error by reasoning that our courts have never specifically rejected it in Batson situations and by stressing the important values compromised by gender discrimination in jury selection. In doing so, the majority ignores the relevant admonition of our supreme court: \"Rule 615(a) does not operate in the nature of a general savings clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court.\u201d Precup, 73 Ill. 2d at 16; reiterated in People v. Herrett (1990), 137 Ill. 2d 195, 215-16, 561 N.E.2d 1, 10-11.\nHad there been a sufficient basis to find a prima facie case of gender discrimination in the record, remand certainly would be proper. In that case, the remand would not be to find error; this court would already have found a prima facie case of error, and the remand would be for the purpose of allowing the prosecution to articulate gender-neutral reasons for its peremptory challenges of women. Without such a finding, however, the majority\u2019s logic is flawed. I cannot concur with a decision to remand in order to discover whether error has occurred, when the majority does so under the plain error exception to the waiver doctrine.\nII\nAfter correctly deciding that defendant waived (or forfeited) his right to raise this gender discrimination claim, the majority justifies its version of the plain error exception by asserting that \"unique circumstances\u201d compel its conclusions. I respectfully disagree.\nThe \"unique circumstances\u201d are that the trial at issue was held one year before Batson was decided in 1986 and that in 1985, \"[no] decision was handed down that even hinted that gender-discrimination concerns were implicated in the jury selection process.\u201d (261 Ill. App. 3d at 468.) The majority goes on to suggest that \"[h]ad this or any other defendant objected to the State\u2019s use of its peremptory challenges to exclude venire members on account of their gender before [Batson and Powers] were decided, such a motion would sadly have been considered to be frivolous, *** as no controlling authority existed at that time to support it.\u201d (261 Ill. App. 3d at 468.) The majority then concludes that \"[i]t surely would have been an obvious waste of judicial resources for defendant to object to the exclusion of women from the petit jury in his trial in 1985.\u201d (261 Ill. App. 3d at 468.) The majority, however, is silent about defendant\u2019s having overlooked the opportunity to raise this point at his 1990 Bat-son hearing, by which time the issue certainly was no longer novel. (United States v. De Gross (9th Cir. 1990), 913 F.2d 1417, 1423 (extending Batson to a defendant\u2019s gender discrimination in selecting the jury at his 1987 trial); United States v Hamilton (4th Cir. 1988), 850 F.2d 1038, 1043 (declining to extend Batson when government gave as its race-neutral reason for having struck female jurors at a pre-Batson trial that it wanted men), cert, denied (1990), 493 U.S. 1069, 107 L. Ed. 2d 1017, 110 S. Ct. 1109; United States v. Broussard (5th Cir. 1993), 987 F.2d 215 (same).) At least one State court had considered the question as early as 1982. State v. Ucero (R.I. 1982), 450 A.2d 809.\nI believe the majority errs in holding that a newly announced rule of constitutional dimension may be applied to a case pending on direct review, even if the defendant did not raise the issue at trial. The majority cites no cases in which a court has permitted a defendant to invoke such a newly announced rule without having voiced an objection during the proceeding from which appeal was taken. Not even in Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, in which the United States Supreme Court determined that Batson should apply retroactively to cases pending on direct appeal at the time Batson was announced, did the Court state, or even imply, that its ruling would apply when a defendant had not raised a discrimination claim at trial.\nHere, neither during his trial nor in his post-trial motion did defendant challenge the State\u2019s use of its peremptory challenges to exclude women from the petit jury. He uttered not a murmur when, at the Batson hearing in 1990, the assistant State\u2019s Attorney, who had not participated in the trial, effectively invited such an objection with the candid observation that the trial prosecutor \"for whatever reason, *** in this case found it advantageous or desireable to have males on this jury.\u201d Under these \"unique circumstances,\u201d our review under the plain error exception to the waiver doctrine is unwarranted.\nIII\nAlthough I agree that in a proper case this court may invoke the plain error rule sua sponte, I question the propriety as well as the wisdom of entertaining defendant\u2019s claim when the determination from which he is appealing is not the original voir dire but only the circuit court\u2019s finding that he failed to present a prima facie case that the State used its peremptory challenges to improperly exclude African-Americans from the jury. The majority apparently believes that any issue of constitutional import arising at the trial is fair game for our careful scrutiny at this time. It cites no support, however, for the proposition that a reviewing court\u2019s reach extends to questions different from those the circuit court determined on the remand, thereby permitting a defendant to get a \"second bite of the apple\u201d on review after remand. This case does not justify such a ruling.\nIV\nSome additional observations concerning that portion of the majority\u2019s holding with which I disagree are in order.\nThe majority\u2019s reliance on our supreme court\u2019s holding in Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831, is puzzling. In that case, the supreme court rejected a party\u2019s contention that the appellate court had relied upon an argument not presented to it. In so doing, the supreme court had no occasion to overlook waiver in resolving the central issue in the case. The waiver language quoted by the majority was used merely to justify its holding that a reviewing court may overlook the provisions of Supreme Court Rule 341(e)(7), a rule addressing one\u2019s ability to raise waived points in a reply brief, a far cry from the type of waiver involved in this case. Moreover, although the quoted language from Hux is ostensibly consistent with its views, the majority fails to take note of the following cautionary language in that case:\n\"There are limitations [to a reviewing court\u2019s ability to override considerations of waiver]. '[A]n appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had they been presented at the trial.\u2019 [Citation.] In exercising the power care should be taken that the litigants are not deprived of an opportunity to present argument.\u201d Hux, 38 Ill. 2d at 225.\nIn disregarding the waiver that it concedes occurred in this case, the majority stresses that \" '[t]he waiver rule is one of administrative convenience rather than jurisdiction.\u2019 \u201d (261 Ill. App. 3d at 470, quoting Smith, 106 Ill. 2d at 333, 478 N.E.2d at 360.) What the majority neglects to point out, however, is that the quoted principle is the underpinning for our review of plain error; it does not justify a search for any error or, as the majority regrettably does here, a remand to determine whether error occurred. Indeed, some self-imposed limitation on our review power is advisable; prudence dictates caution in overriding well-established waiver principles, except in genuine plain-error situations. We must be mindful of the premise upon which the waiver doctrine is based: the need to call alleged error to the attention of one\u2019s adversary and the trial court so that remedial measures might be taken at the circuit court level. We should also recognize that the waiver doctrine effectively encourages competency of members of the trial bar, while our willingness to ignore waiver fosters unprofessionalism and rewards ineptness. Most significantly, such willingness requires appellate counsel in criminal cases to pursue waived issues, lest claims of ineffective assistance of counsel be lodged against them, for at any time a reviewing court might do what the majority does here.\nIn responding to what it refers to as my desire for a \"hypertechnical legal package\u201d and my \"constrictive implementation of waiver,\u201d the majority quotes the Spanish poet Antonio Machado. (261 Ill. App. 3d at 472 n.7.) The majority\u2019s revelational choice of quotation underlies its statement that \"[e]ven in the absence of Hux as precedential authority, we would *** be compelled to decide this case no differently than we do here.\u201d (261 Ill. App. 3d at 472 n.7) I reject the notion that \"you make the way as you go\u201d can be a proper principle for appellate review. If it were, it would devour all of the firmly established principles that properly temper our review authority.\nAlthough I share the majority\u2019s fervor regarding the unacceptability of gender discrimination in jury selection, I do not share its belief that the mere possibility of gender discrimination is so offensive that, regardless of the adequacy of the record, we are compelled to state that fact forcefully here and remand for a hearing as to its existence, even though no precedent justifies such action. This is not a case that demands articulation of fervor concerning gender discrimination; we should await a case that presents that issue in a proper form. This, in summary, is not a case that requires the unique treatment the majority affords it.\nAs my concurrence in Mitchell should make plain, I believe that gender discrimination in the selection of jurors violates both the State and the Federal constitutional guarantees of equal protection. Our supreme court recently vacated \"that part of the judgment of the appellate court *** prescribing the procedure to be followed upon retrial in the event of a motion for a Batson hearing premised upon gender-based exclusion of [potential] jurors\u201d (Mitchell, 155 Ill. 2d at 356-57), which it quoted, but the court did not express dissatisfaction with the substance of our reasoning and conclusions.\nJustice Ryan, specially concurring with the Illinois Supreme Court\u2019s decision in People v. Free (1988), 122 Ill. 2d 367, 522 N.E.2d 367, cert, denied (1988), 488 U.S. 872, 102 L. Ed. 2d 159, 109 S. Ct. 190, distinuishes between the term \"waiver\u201d and the term used by the majority in that case, \"procedural default.\u201d \"Waiver is an intelligent relinquishment of a known right o[r] a privilege. [Citation.] Procedural default, on the other hand, relates to a failure by counsel to comply with certain procedural requirements which results in the forfeiture of the right to raise error on appeal.\u201d [Free, 122 Ill. 2d at 379 (Ryan, J., specially concurring).) Our courts have long used the term \"waiver\u201d when perhaps \"forfeiture\u201d might have been more accurate. For that reason, in this dissent, like the majority, I use the term \"waiver\u201d as synonymous with \"forfeiture.\u201d\nThe United States Supreme Court in Olano also distinguishes between \"waiver\u201d (the \"intentional relinquishment or abandonment of a known right\u201d) and \"forfeiture\u201d (the \"failure to make the timely assertion of a right\u201d). Olano, 507 U.S. at 733, 123 L. Ed. 2d at 519, 113 S. Ct. at 1777.\nThe procedural posture of this appeal, i.e., a separate appeal from the hearing after remand, is unusual. Nine months after our first opinion in this case, the supreme court explained that when remanding for a Batson hearing, the appellate court should retain jurisdiction as Rule 615(b) (134 Ill. 2d R. 615(b)) allows, issuing its opinion after the hearing. (People v. Garrett (1990), 139 Ill. 2d 189, 194-95, 564 N.E.2d 784, 787.) Even if we had retained jurisdiction while remanding for the Batson hearing, I believe that only issues arising from that hearing could be newly raised. See, e.g., People v. Jones (1989), 185 Ill. App. 3d 208, 544 N.E.2d 161 (supplemental opinion after remand).", "type": "concurring-in-part-and-dissenting-in-part", "author": "PRESIDING JUSTICE DiVITO," } ], "attorneys": [ "Michael J. Pelletier and Nan Ellen Foley, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Barbara Jones, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANKIE LANN, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201490\u20142966\nOpinion filed April 19, 1994.\nDiVITO, P.J., concurring in part and dissenting in part.\nMichael J. Pelletier and Nan Ellen Foley, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Barbara Jones, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0456-01", "first_page_order": 474, "last_page_order": 500 }