specially concurring:
I agree with Justice Neville that we must reverse this matter and remand it for new trial based on the holding in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and its progeny. I base this decision on a ground different from that found by Justice Neville. I believe that the trial court applied a faulty factual analysis when considering plaintiffs Batson challenges.
“[A] trial court’s third-stage finding on the ultimate issue of discrimination rests largely on credibility determinations.” (Emphasis in original.) People v. Rivera, 221 Ill. 2d at 502, citing McDonnell v. McPartlin, 192 Ill. 2d at 527. Where the record indicates that the trial judge appropriately scrutinized counsel’s explanation, the trial judge’s determination as to counsel’s credibility is entitled to great deference. McDonnell v. McPartlin, 192 Ill. 2d at 529.
In People v. Martinez, 317 Ill. App. 3d 1040, 1044 (2000), this court distinguished the different considerations the trial court must take into account during the second and third steps of the Batson process: “At the second step, the court focuses on the facial validity [of the reason proffered for striking the juror]. At the third step, the court must evaluate the persuasiveness and genuineness of the reason. At this third step, the court cannot just accept the proffered reason without evaluating it against the circumstances of the case.”
The Martinez'court held that it could not determine whether the State’s expressed reason for peremptorily excusing a black juror was pretextual. This was because the trial court held that the issue at the third step of the Batson process was “ ‘the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. *** In this case, the court finds that the State gave race-neutral reasons [sic] for purposes of excluding Miss Lee ***. Court finds no error in the manner of jury selection.’ *** The trial court’s comments demonstrate that it only completed the second-step evaluation pursuant to Batson. Although the trial court stated it was conducting the third-step analysis, it is clear that the court did not in fact conduct the third step.” (Emphasis omitted.) People v. Martinez, 317 Ill. App. 3d at 1045.
The statements of the trial court in the instant case similarly reflect that it had only completed the second-step evaluation pursuant to Batson.
In rejecting plaintiffs’ attorney’s assertion that defendants’ counsel’s use of peremptory challenges was violative of Batson, the court said: “[I]n terms of Mr. Stewart, Ms. Collins, and Ms. Sims, the concerns seem to be their attitudes toward damages, which I believe is a race neutral reason, so on that basis I’m willing to hold there was no Batson violation here.”
After plaintiffs’ counsel argued that defendants’ counsel’s stated reasons that they based their peremptory strikes on the juror’s demeanors had no basis in fact, the trial court said:
“THE COURT: Well, we’ve also seen jurors. We have all noticed body language with people. Sometimes that body language is favorable to us and sometimes it’s not.
I’m not going to question the veracity here of the attorneys. I’m simply saying that as. far as I’m concerned there are race neutral reasons for why these people were excused, and, therefore, I’m not going to sustain the Batson challenge.”
It is well settled that a prospective juror’s courtroom demeanor may constitute a legitimate race-neutral reason for excluding that individual. People v. Andrews, 155 Ill. 2d 286, 303 (1993); People v. Young, 128 Ill. 2d 1, 20 (1989). However, because such a subjective explanation for exercising a peremptory strike lends itself to pretext, such an explanation must be closely scrutinized. McDonnell v. McPartlin, 192 Ill. 2d at 528.
In the instant case, the record demonstrates that the trial court did not “closely scrutinize” defendants’ counsel’s proffered explanations, but rather, the trial court merely accepted their explanations because they were not based on race.
When faced with a similar error occurring during the third step of the Batson process, this court has reversed and remanded cases for the trial court to conduct a proper Batson analysis. See People v. Martinez, 317 Ill. App. 3d at 1046; People v. Davis, 345 Ill. App. 3d at 911-12. Those cases involved allegations that one peremptory challenge was exercised inappropriately. As pointed out by Justice Neville, while the defense peremptorily excused five veniremen, only three of these peremptories are really problematic. Further, while Justice Neville finds that excusing venireperson Norma Collins was pretextual, I do not. I believe that defense counsel were well within their rights to excuse Ms. Collins based on her having previously filed a worker’s compensation claim. Defense counsel proffered that they excused venirepersons Orlassia Sims and Larry Stewart due to their having raised their hands when asked whether they could return a verdict in excess of $1 million should the jury find defendant doctors liable for decedent’s death. Justice Neville points out that a fair reading of the record reveals that all the potential veniremen raised their hands in response to this question. Consequently, the offered reason for excusing Sims and Stewart — that they indicated support for a large damages award in the case — would not distinguish those two jurors from the rest of the venire who were selected. I agree with Justice Neville on this point, but I do not believe that the record is sufficiently clear to find that the reasons stated by defense counsel were pretextual. However, I do believe that the trial court’s statement that “I’m not going to question the veracity here of the attorneys” effectively cut off discussion of the bases for the peremptory strikes. Considering the fact that the trial court judge has since retired, I agree that remandment would be inappropriate. McDonnell v. McPartlin, 192 Ill. 2d at 528. Consequently, I agree that we must reverse this matter and remand it for a new trial.
I believe that the trial court’s error in this case is understandable considering the contradictory language utilized by the Supreme Court in applying Batson. As explained by our own supreme court in People v. Harris, 206 Ill. 2d 1, 17 (2002):
“Once a prima facie case is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for excusing the venirepersons in question. Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866 (1991); People v. Williams, 164 Ill. 2d 1, 19 (1994). At this stage of the process, the explanation given by the prosecutor need not be persuasive, or even plausible. Purkett v. Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 839, 115 S. Ct. 1769, 1771 (1995). A neutral explanation is one based on a reason other than race. Harris II, 164 Ill. 2d at 333. ‘Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’ Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.” (Emphasis added.)
See also People v. Munson, 206 Ill. 2d 104, 117 (2002); People v. Crockett, 314 Ill. App. 3d 389 (2000), using the same language.
Webster’s Third New International Dictionary 1736 (1986) defines “plausible” as “superficially worthy of belief: credible; being such as may be accepted as real (eg. a plausible pretext).” It is clearly contradictory to say that a prosecutor’s explanation need not be “plausible” but that courts must “closely scrutinize” these same explanations.
The contradictory nature of this language is highlighted by the language used recently by the Supreme Court in Miller-El v. Dretke, 545 U.S. 231, 252, 162 L. Ed. 2d 196, 221, 125 S. Ct. 2317, 2331-32 (2005);
“As for law, the rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. 476 U.S., at 96-97; Miller-El v. Cockrell, 537 U.S., at 339. It is true that peremptories are often the subjects of instinct, Batson v. Kentucky, 476 U.S., at 106 (Marshall, J., concurring), and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reason he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.” (Emphasis added.)
It is not at all surprising that trial courts and attorneys occasionally have great difficulty in addressing Batson challenges considering that the guidance given by courts of review is not only unclear, it is contradictory.