dissenting:
This case has now been remanded to the Illinois courts not only by the United States Court of Appeals for the Seventh Circuit, but also by the United States Supreme Court, for reconsideration in light of Miller-El. The majority opinion “respectfully concludes that the Court’s ruling in Miller-El does not affect the validity of the trial court’s analysis of Coulter’s Batson claims.” 345 Ill. App. 3d at 86. The majority opinion also questions why my prior dissents did not explain how another analysis of the same record would affect my view, given that I authored the opinion in Coulter I rejecting Coulter’s Batson claim. 345 Ill. App. 3d at 89-90. The answer to that question can be deduced readily from my dissent in Coulter II, but will be further explained below in the course of explaining why the majority opinion’s analysis of Miller-El is as flawed as the now-vacated opinion in Coulter II.
A brief chronology of this case may be useful. In Coulter I, this court remanded for a proper Batson hearing, as the trial court had collapsed the Batson hearing into an undifferentiated review of defense and State contentions. Coulter I, 230 Ill. App. 3d at 221, 594 N.E.2d at 1171.2 The procedure that the trial court then followed was “less than ideal,” as Coulter was unable to attack the reasons offered by the State until the hearing on his motion to reconsider, and the trial court exhibited an unjustified, open hostility toward defense counsel in this capital case. Coulter I, 230 Ill. App. 3d at 222, 594 N.E.2d at 1171-72. Nevertheless, this court deemed the record sufficient for review after that remand. Coulter I, 230 Ill. App. 3d at 222, 594 N.E.2d at 1172.
This court then engaged in a juror-by-juror review of the reasons the State proffered for excluding members of the venire, as well as an examination as to whether those reasons were pretextual, where appropriate. Coulter I, 230 Ill. App. 3d at 225-29, 594 N.E.2d at 1174-76. Indeed, the analysis in Coulter I was quite juror-specific. For example, in reviewing the reason proffered for excluding Teresa Brantley, this court concluded that “deference to the trial court ruling in this respect is warranted.” Coulter I, 230 Ill. App. 3d at 227, 594 N.E.2d at 1175. In reviewing the reason proffered for excluding Jeanell Hicks, we stated that “[gjiven the great deference accorded to the trial court’s ruling, which is based largely on an assessment of the State’s credibility, we cannot say that the trial court’s ruling was clearly erroneous.” Coulter I, 230 Ill. App. 3d at 228, 594 N.E.2d at 1175.
Moreover, in reviewing the exclusion of Marcina Adams, this court rejected the defense argument that if the State had been concerned about her possible knowledge of psychology or psychiatry, it would have asked other members of the venire questions about their knowledge of these fields. Coulter I, 230 Ill. App. 3d at 226-27, 594 N.E.2d at 1174. This court’s analysis in Coulter I ends with a one-sentence paragraph concluding that Coulter had failed to demonstrate from the record that the trial court’s ruling was clearly erroneous. Coulter I, 230 Ill. App. 3d at 229, 594 N.E.2d at 1176. This court affirmed Coulter’s conviction, in part because the evidence was not closely balanced. See Coulter I, 230 Ill. App. 3d at 219-21, 594 N.E.2d at 1170-71. Our supreme court denied Coulter’s petition for leave to appeal. People v. Coulter, 146 Ill. 2d 636, 602 N.E.2d 461 (1992).
Coulter then sought a federal writ of habeas corpus. The district court dismissed the petition, but the Seventh Circuit reversed and remanded the case for further consideration. Coulter v. Gramley, 93 F.3d 394 (7th Cir. 1996). On remand, the district court granted relief to Coulter, ordering that he be released or retried within 120 days. Coulter v. Gramley, 945 F. Supp. 1138, 1143 (N.D. Ill. 1996).
On appeal, the Seventh Circuit affirmed. The federal appellate court stated that this court’s “review of the prosecution’s juror-by-juror justifications shows that the [Sjtate’s challenges, viewed one-by-one, were based on reasons previously recognized as legitimate and non-discriminatory.” Coulter v. Gilmore, 155 F.3d 912, 919 (7th Cir. 1998). Nevertheless, the Seventh Circuit stated that reasons proffered for striking Jeanell Hicks and Melvin Igess “seemed to verge on the ‘patently absurd.’ ” Coulter v. Gilmore, 155 F.3d at 920.
Thus, the Seventh Circuit held that the trial court violated Batson by adhering to a procedure that precluded it from performing a “similarly situated” analysis based on the “totality of the circumstances.” Coulter v. Gilmore, 155 F.3d at 921. As the Seventh Circuit saw it:
“[T]he juror-by-juror inquiry that the trial court conducted, unsupplemented by any final look at the record as a whole despite counsel’s efforts to present this evidence to the court, practically guaranteed the conclusion that the prosecution was acting race neutrally.” Coulter v. Gilmore, 155 F.3d at 921.
The Seventh Circuit stated that “somehow, at some point, the trial court must evaluate the broader pattern of strikes.” Coulter v. Gilmore, 155 F.3d at 921.
However, the Seventh Circuit concluded that ordering that Coulter be released or retried was not the appropriate remedy, stating in relevant part:
“[A]n intermediate solution is possible, which is to require Coulter to be released unless within 120 days the state court holds a new hearing on his Batson claim at which the proper; methodology for evaluating his claim is followed — that is, in addition to reviewing the reasons given for striking each juror, it considers the totality of the circumstances and compares the prosecutor’s strikes against African-Americans against its treatment of similarly situated Caucasians. In the interest of comity and the possible efficiency of avoiding a new trial, we conclude that this more limited grant of the writ is the proper course to follow. We therefore AFFIRM the judgment of the district court, but modify its order to grant the writ unless within 120 days the state court holds a new hearing on Coulter’s Batson claim in accordance with this opinion.” (Emphases added.) Coulter v. Gilmore, 155 F.3d 912, 922 (7th Cir. 1998).
On remand, a trial judge other than the original trial judge ruled against Coulter’s Batson claim. The trial court did not compare the State’s strikes against African-Americans against its treatment of similarly situated Caucasians. On appeal, this court stated that “it is not the task of this court to analyze the trial court’s actions in the wake of the Seventh Circuit’s opinion.” Coulter II, 321 Ill. App. 3d at 654, 748 N.E.2d at 248.
This assertion was and is one of the primary errors in Coulter II. See Coulter II, 321 Ill. App. 3d at 659-60, 748 N.E.2d at 253 (Campbell, EJ., concurring in part & dissenting in part). In state court proceedings held pursuant to a federal writ of habeas corpus, the trial court must proceed in a manner which is a reasonable interpretation of the federal court’s order. See, e.g., People v. Emerson, 189 Ill. 2d 436, 464-67, 727 N.E.2d 302, 319-20 (2000). In Emerson, our supreme court also held that Emerson’s claim of ineffective assistance of counsel was barred by the doctrine of res judicata following its rejection in the federal courts. Emerson, 189 Ill. 2d at 517, 727 N.E.2d at 346. Indeed, our supreme court has consistently held that where the parties and issue are the same, the federal court’s decision is binding and the doctrine of res judicata applies, even when the state court believes the federal court is in error. E.g., People v. Nance, 189 Ill. 2d 142, 146-48, 724 N.E.2d 889, 891-92 (2000); State Life Insurance Co. v. Board of Education of the City of Chicago, 401 Ill. 252, 257, 81 N.E.2d 877, 880 (1948).
The majority in Coulter II relied on People v. Eyler, 133 Ill. 2d 173, 549 N.E.2d 268 (1989), but the relevant portion of Eyler states:
“Because lower Federal courts exercise no appellate jurisdiction over State courts, decisions of lower Federal courts are not conclusive on State courts, except insofar as the decision of the lower Federal court may become the law of the case.” (Emphasis added.) Eyler, 133 Ill. 2d at 225, 549 N.E.2d at 291.
Absent a jurisdictional defect, a federal court decision is the law of the case binding on all other courts, and can only be attacked on direct appeal. Morey Fish Co. v. Rymer Foods, Inc., 158 Ill. 2d 179, 186, 632 N.E.2d 1020, 1024 (1994).
In short, the majority need go no further than my dissent in Coulter II and the case law cited therein to answer the question of why I did not adhere to Coulter I in Coulter II.
However, Coulter’s case is before this court yet again, because the United States Supreme Court took the unusual step of vacating Coulter II and remanding for further consideration in light of Miller-El.3 The majority correctly notes that Coulter’s petition for a "writ of certiorari asked the United States Supreme Court give guidance as to the proper “ ‘totality of the circumstances’ ” analysis and as to “ ‘what constitutes purposeful discrimination under Batson.’ ” 345 Ill. App. 3d at 86. Rather than viewing the Supreme Court’s order as a response to Coulter’s requests, the majority opinion strains to dismiss Miller-El as a case: (1) involving a threshold analysis of whether a certificate of appealability (COA) should have issued in the federal habeas corpus proceedings; (2) not based on the merits of Batson; and (3) that does not alter the Batson analysis. See 345 Ill. App. 3d at 86. This treatment of Miller-El is perplexing, given that the majority opinion concedes that the Miller-El Court’s threshold analysis tracks the three-stage procedure outlined in Batson and was expressly concerned with the third stage of that procedure. 345 Ill. App. 3d at 92.
As will be shown below, Miller-El addresses the issues Coulter raised. Miller-El clarifies Batson in at least four ways that show Coulter II and the current majority opinion are based on a faulty analysis of Batson and its progeny.
First, Miller-El endorses a comparative analysis of the sort ordered by the Seventh Circuit in this case, stating:
“[E]ven though the prosecution’s reasons for striking African-American members of the venire appear race neutral, the application of these rationales to the venire might have been selective and based on racial considerations.” Miller-El, 537 U.S. at 343, 154 L. Ed. 2d at 954, 123 S. Ct. at 1043.
Indeed, the majority opinion here ultimately quotes Miller-El on this point:
“ ‘Whether a comparative juror analysis would demonstrate the prosecutors’ rationales to have been pretexts for discrimination is an unnecessary determination at this stage, but the evidence does make debatable the District Court’s conclusion that no purposeful discrimination occurred.’ ” 345 Ill. App. 3d at 88, quoting Miller-El, 537 U.S. at 343, 154 L. Ed. 2d at 954, 123 S. Ct. at 1043.
In short, the Supreme Court decided that a comparative juror analysis raised a sufficient question warranting further judicial review of the Batson claim.
Nevertheless, the majority opinion attempts to avoid the very language it quotes from Miller-El by asserting that a comparison of similarly situated venire members is permissible, but not required in every case. 345 Ill. App. 3d at 92; see Coulter II, 321 Ill. App. 3d at 655-56, 748 N.E.2d at 250. The majority’s conclusion that a comparative juror analysis is not required in every case does not address the issue of whether it was required in this case. Here, as the final passage of Coulter v. Gilmore quoted above makes clear, the trial court was to conduct a Batson hearing that encompassed a comparative juror analysis.
Unlike the now-vacated opinion in Coulter II, the current majority opinion does not expressly state that Illinois courts need not comply with the indisputably valid federal court order and opinion in Coulter v. Gilmore giving rise to these proceedings. Instead, the majority opinion cites United States v. Smith, 324 F.3d 922, 927 (7th Cir. 2003), which relied on Miller-El and Coulter v. Gilmore. A reading of Smith shows that the Seventh Circuit concluded therein that Miller-El is consistent with Coulter v. Gilmore, rather than the opposite conclusion suggested in the majority opinion.
Moreover, in Smith, the Seventh Circuit rejected Smith’s comparative analysis argument, stating that it was not determinative in Smith’s case. Smith, 324 F.3d at 927. The issue here is not whether the comparative analysis was determinative, but whether it is error to ignore a comparative analysis ordered by the Seventh Circuit and sought by Coulter in this case. The majority opinion reaffirms its opinion in Coulter II that the trial court performed a “totality of the circumstances” test. 345 Ill. App. 3d at 92. The majority opinion does not explain how the facts giving rise to a comparative analysis are somehow not “circumstances” or how they are circumstances that may be excluded from the “totality.”4 Obviously, it cannot be said whether the comparative analysis would have been determinative in this case, precisely because the trial court failed to consider it.
Second, in addition to endorsing a comparative analysis, the Miller-El Court addressed the allocation of the burdens of production and persuasion in Batson proceedings. The Miller-El Court concluded that the denial of a COA was in error because:
“the District Court did not give full consideration to the substantial evidence petitioner put forth in support of the prima facie case. Instead, it accepted without question the state court’s evaluation of the demeanor of the prosecutors and jurors in petitioner’s trial.” Miller-El, 537 U.S. at 341, 154 L. Ed. 2d at 953, 123 S. Ct. at 1042.
Thus, Miller-El makes clear that the evidence presented at the first stage of the Batson process is also to be considered at the final stage of that process. The Miller-El Court cited Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000), a review of a final judgment in an age discrimination case. Miller-El, 537 U.S. at 340-41, 154 L. Ed. 2d at 952, 123 S. Ct. at 1041; see Reeves, 530 U.S. at 143, 147 L. Ed. 2d at 117, 120 S. Ct. at 2106. Miller-El thus also clarifies that the allocation of burdens of production and persuasion generally applicable in civil rights cases are also those to be applied in a Batson hearing. The fact that the Miller-El Court relied on an indirect “Cf.” citation to Reeves to make this clarification demonstrates that while the Miller-El Court believed that the allocation of these burdens “goes without saying,” the Court had in fact not said it in the Batson context and was ultimately required to explicitly do so. This clarification is completely consistent with the Seventh Circuit’s directive in this case that the trial court take a “final look” at the “broader pattern of strikes.”
Accordingly, the majority opinion’s dismissal of the fact that 9 of 10 minority venire members were struck as being relevant only at the first stage of Batson is clearly erroneous. See 345 Ill. App. 3d at 86. Following Miller-El, the disproportionate use of strikes against minorities, like the comparative juror analysis, is relevant at both the first and third stages of the Batson analysis. The difference between the threshold analysis in Miller-El and an actual Batson analysis is the quantum or weight of the evidence required to prevail, not the allocation of the burdens of production and persuasion or rules regarding when evidence is to be considered. The majority opinion does not explain why these rules apply to a threshold analysis of a Batson claim in federal habeas proceedings and to a final judgment in a discrimination case, but not to an ordinary Batson hearing.
Third, Miller-El specifically recognized that disparate questioning based on race is evidence of purposeful discrimination. Miller-El, 537 U.S. at 344-45, 154 L. Ed. 2d at 954-55, 123 S. Ct. at 1043.5 As noted above, in Coulter I, this court rejected a claim of disparate questioning. Miller-El makes clear that this court should not have done so.
Indeed, the majority opinion’s sudden embrace of Coulter I is one of its more curious aspects. Although the majority opinion discusses Coulter I at length, a reading of Coulter I shows that (as noted above) the Batson analysis was juror-specific. There was no “final look” at the “broader pattern of strikes” after the juror-by-juror review to determine whether reasons proffered by the State that may have been deemed valid or nonpretextual when viewed in isolation may nevertheless show discrimination when viewed as a whole.
Fourth, Miller-El clarifies the extent to which a reviewing court should defer to a trial corut’s rulings on issues of credibility at the final stage of the Batson analysis. The Miller-El Court rejected the notion that the reviewing court should have uncritically deferred to the trial court. To be sure, the Miller-El Court stated that generally, “[djeferenee is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations.” Miller-El, 537 U.S. at 339, 154 L. Ed. 2d at 952, 123 S. Ct. at 1041. However, the Miller-El corut rejected the federal appeals court’s holding that the “ ‘presumption of [the state court’s] correctness is especially strong, where, as here, the trial court and state habeas court are one and the same.’ ” Miller-El, 537 U.S. at 342, 154 L. Ed. 2d at 953, 123 S. Ct. at 1042, quoting Miller-El v. Johnson, 261 F.3d 445, 449 (5th Cir. 2001). The Court also stated that “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review.” Miller-El, 537 U.S. at 340, 154 L. Ed. 2d at 952, 123 S. Ct. at 1041. The Miller-El Court “questioned] the Court of Appeals’ and state trial court’s dismissive and strained interpretation of petitioner’s evidence of disparate questioning.” Miller-El, 537 U.S. at 344, 154 L. Ed. 2d at 954, 123 S. Ct. at 1043.
In this case, the judge rehearing Coulter’s Batson claim was not the original trial judge. The prosecutors on remand were not the original prosecutors. There is no evidence that either of the original prosecutors ever practiced in front of the second judge. In addition, the evidence “at the Batson hearing was subject to the usual risks of imprecision and distortion from the passage of time.” Miller-El, 537 U.S. at 343, 154 L. Ed. 2d at 954, 123 S. Ct. at 1043. In short, the second judge was confronted with a cold record of voir dire and was in no better position than this court to review it. That this court reviewed the record and rejected the Batson claim in Coulter I is simply irrelevant, given the current procedural posture of this case. The relevant point is that whatever deference is due the original trial judge in this context (and Miller-El suggests too much may have been given in Coulter I), less deference is due to a second judge who was not involved in the original Batson hearing.
Nevertheless, the second trial judge made credibility determinations based on her personal experience dehors the record with one of the prosecutors and the other prosecutor’s professional reputation.6 The transcript shows that the trial judge noted that one of the prosecutors, “God rest his soul, was first a Public Defender. He was second, an Assistant State’s Attorney, and at the end of *** his career he was a Circuit Judge of Cook County.” The trial judge added, “I believe that I will never, ever have the pleasure of knowing a more honest person, a person with more integrity ***.” She then stated that the other prosecutor “had the same sort of reputation as a prosecutor and also now as a criminal defense attorney.” The trial judge also commented that “it is in vogue these days to be politically correct with regard to race issues, ethnicity issues, gender issues,” but that “it doesn’t seem to be as in vogue these days to concern ourselves, *** with matters of integrity and credibility.”
Of course, Batson is not a mere matter of “political correctness,” but federal constitutional law to be followed by Illinois courts. Moreover, an examination of credibility is an important part of the third stage of the Batson analysis; the trial court’s apparent view that these issues are separate should be troubling to a reviewing court. In addition, both the Seventh Circuit’s opinion in this matter and Miller-El make clear that the examination of credibility should consider whether the explanations offered by the State for striking minority venire members were equally applicable to majority venire members accepted by the State. Performing the comparative analysis would not only have complied with the Seventh Circuit’s order and been consistent with Miller-El, but also would have focused on objective facts about veniremembers and jurors established in the record, rather than the trial judge’s personal opinions.
Indeed, the latest majority opinion fails to mention that the trial court did not bother to discuss two of the veniremembers at issue, Rhem and Brantley. See Coulter II, 321 Ill. App. 3d at 656, 748 N.E.2d at 250. The majority in Coulter II concluded that exhaustive findings are not required in all cases, so long as they are “sufficiently specific.” Coulter II, 321 Ill. App. 3d at 656, 748 N.E.2d at 250, citing People v. Fair, 159 Ill. 2d 51, 76, 636 N.E.2d 455, 469 (1994). While not all cases may require exhaustive findings, it must be noted that our supreme court stated in Fair after a juror-by-juror review that the trial judge’s findings were “sufficiently specific for our purposes.” (Emphasis added.) Fair, 159 Ill. 2d at 76, 636 N.E.2d at 469. The issue of comparative analysis was not present in Fair. Ironically, the majority opinion now chooses to champion the juror-by-juror analysis of Coulter I, but that analysis is insufficient in this case, for the reasons stated above.
In this case, the State claimed that Rhem and Brantley were being excluded based on their employment history. If Coulter argued that those explanations were pretextual because a white venire member with a similar employment history to Rhem or Brantley was accepted by the State, it would follow that the trial court would have to make a finding that is sufficiently specific for the purpose of review. In the context of a comparative analysis, such a finding necessarily would have to identify the veniremembers at issue. After all, the exclusion of even one veniremember on the basis of race violates Batson. E.g., People v. Andrews, 146 Ill. 2d 413, 434, 588 N.E.2d 1126, 1137 (1992); People v. McDonald, 125 Ill. 2d 182, 200, 530 N.E.2d 1351, 1359 (1988). Batson itself emphasized that a prosecutor’s discriminatory act is not “ ‘immunized by the absence of such discrimination in the making of other comparable decisions.’ ” Batson, 476 U.S. at 95, 90 L. Ed. 2d at 87, 106 S. Ct. at 1722, quoting Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 n.14, 50 L. Ed. 2d 450, 465 n.14, 97 S. Ct. 555, 564 n.14 (1977). Given the case law, the trial judge’s reliance on the general reputation of persons who may have never prosecuted a case before her, while ignoring the more objective analysis required by the Seventh Circuit’s order (now indisputably proper under Miller-El) was clearly wrong.
Nor was the trial judge’s reliance on personal opinion limited to the reputation of the prosecutors. The record shows that the trial judge noted that competent advocates generally have some general profile of the sort of juror they would like to seat and “reading between the lines” of the original transcript, looked at the profiles each side seemed to have developed for this case. The trial judge may have been correct as a matter of fact. However, it is well established the trial court must focus on the reasons actually proffered by the State and cannot presume that an unarticulated, race-neutral explanation exists. E.g., People v. Harris, 129 Ill. 2d 123, 184, 544 N.E.2d 357, 384 (1989).
In sum, the majority opinion repeats and magnifies the errors in Coulter II. The dissent in Coulter II sufficiently explains my reasons for not adhering to Coulter I. The analysis applied in Miller-El, which the Supreme Court of the United States ordered this court to consider on remand, provides numerous additional reasons to conclude that the Batson hearings in this case have been inadequate. Miller-El endorses the comparative juror analysis. Miller-El holds that evidence put forth in support of the prima facie case also should be considered at the final stage of the Batson procedure. The majority opinion not only fails to recognize this rule, but is based on the opposite premise. Miller-El expressly recognizes disparate questioning as evidence of discrimination, contrary to Coulter I, which the majority opinion continues to embrace. The majority opinion’s deference to the trial judge is as strained and dismissive as the court reversed in Miller-El. Such deference is even less supportable here, where the trial judge was not the original trial judge and based her decision in part on her personal opinions and speculation, rather than the objective record before her. Accordingly, the majority opinion’s conclusions that Miller-El adds nothing to the established Batson analysis and that the trial court’s analysis on remand was sufficient are clearly erroneous.
As noted above, the majority questions what would be achieved by remanding this case to the trial court. Remanding this case would grant Coulter a proper Batson hearing that conforms to the standards required by the opinion and order of the Seventh Circuit in this case and endorsed in Miller-El. Remanding this case would ensure that Coulter and members of the community who appeared for jury duty were not subjected to racial discrimination by the State. Given the majority opinion’s treatment of Emerson, Nance, Coulter v. Gramley and Miller-El, it might be more useful to consider the foreseeable consequences of reaffirming an opinion that was deemed inadequate in the habeas proceedings and an opinion that was vacated by the United States Supreme Court. Accordingly, I respectfully dissent.
Our supreme court has continued to condemn the undifferentiated review of Batson claims. E.g., People v. Garrett, 139 Ill. 2d 189, 201, 564 N.E.2d 784, 789-90 (1990). Such error is not necessarily fatal. E.g., Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866 (1991). Nevertheless, collapsing the Batson steps and failing to make detailed findings of fact to clarify the record when a Batson objection is raised needlessly adds to the number of costly appeals and makes appellate review unnecessarily difficult. People v. Beard, 263 Ill. App. 3d 1077, 1083, 636 N.E.2d 658, 662 (1993); People v. Valentine, 221 Ill. App. 3d 1082, 1086-87, 582 N.E.2d 1338, 1342 (1991). There may be no better proof of that proposition than this case.
Where a judgment order is vacated, the effect is to leave the pleadings as if no judgment were ever entered. Flavell v. Ripley, 247 Ill. App. 3d 842, 847, 617 N.E.2d 1342, 1345 (1993); see Black’s Law Dictionary 1546 (7th ed. 1999). Upon receiving the Supreme Court’s order vacating Coulter 11, this court ordered the parties to simultaneously submit memoranda regarding the impact of Miller-El on this appeal. In retrospect, a more traditional briefing schedule, with an opportunity for parties to respond or reply to each other, might have sharpened the issues and avoided the necessity of issuing a modified opinion on rehearing.
The majority opinion does state that Coulter I gives no indication that defendant argued to the original trial judge that Terry, Adams, Brantley or Hicks was similarly situated to nonminority venire members who were selected to serve on Coulter’s jury. To the extent that the majority opinion might be read as suggesting that Coulter has waived consideration of those circumstances, it should be noted that discrimination during jury selection raises such serious questions as to the fairness of the proceedings that a reviewing court should determine whether the alleged error constitutes plain error. People v. Blackwell, 164 Ill. 2d 67, 74-75, 646 N.E.2d 610, 614 (1995). In Blackwell, the supreme court ruled that the defendant showed plain error where the record established a prima facie case of discrimination. 164 Ill. 2d at 76, 646 N.E.2d at 614.
In this case, the State struck Melvin Igess based on his response to a question which the trial judge asked Igess regarding the maternity of his children, but which was not posed to the Caucasians on the panel. Coulter v. Gilmore, 155 F.3d 912, 919 (7th Cir. 1998). On remand from the Seventh Circuit, the trial judge failed to consider this factor — despite the fact that it was one of the reasons proffered by the State — focusing instead on his employment record. However, the trial judge did not compare that record with the employment record of another venire member, John Votanek, who allegedly has a similar employment record but was not challenged by the State.
Nor is this first occasion on which this trial judge made such comments. People v. Morales, 308 Ill. App. 3d 162, 167, 719 N.E.2d 261, 266 (1999). However, the Batson ruling in Morales was reversed for other reasons, rendering the point moot in that appeal.