specially concurring in part and dissenting in part:
I agree that this court has jurisdiction over this appeal. I also agree that defendant cannot prevail on his Apprendi claim. The facts supporting his sentence were submitted to and found by the jury beyond a reasonable doubt, and the defendant had pretrial notice that the State was seeking to prove them. Given this record, there is no need to definitively rule on the retroactivity of Apprendi. That issue will almost certainly be raised in later cases in a clearer procedural posture.
More significantly, the majority opinion’s premise that neither the trial court nor this court is bound in these proceedings by the Seventh Circuit’s opinion in Coulter v. Gilmore, 155 F.3d 912 (7th Cir. 1998), is untenable. The majority opinion admits that in People v. Emerson, 189 Ill. 2d 436, 464-67, 727 N.E.2d 302, 319-20 (2000), the issue was whether the trial court reasonably interpreted the federal court’s order. The supreme court also held that Emerson’s claim of ineffective assistance of trial counsel'was barred by the doctrine of res judicata after that claim was rejected in the federal courts. Emerson, 189 Ill. 2d at 517, 727 N.E.2d at 346.
Nor is Emerson unique in this regard. In 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 supreme court held that res judicata applies, even when the state court believes the federal court is in error. Similarly, in People v. Nance, 189 Ill. 2d 142, 146-48, 724 N.E.2d 889, 891-92 (2000), the supreme court held that the State was collaterally estopped from relitigating the constitutionality of a statute held unconstitutional by a three-judge federal district court. Our supreme court stated that this was so, “[wjhatever one thinks of the federal district court’s reasoning.” Nance, 189 Ill. 2d at 147, 724 N.E.2d at 891.
The majority opinion solely relies on People v. Eyler, 133 Ill. 2d 173, 549 N.E.2d 268 (1989), but Eyler recognizes that decisions of lower federal courts may become the law of the case. Eyler, 133 Ill. 2d at 225, 549 N.E.2d at 291. Comity is yet another reason that the federal court’s ruling is binding in this case. See Nance, 189 Ill. 2d at 147, 724 N.E.2d at 892. The majority opinion does not consider any of these principles. This court cannot rule in a way that negates habeas corpus proceedings. See, e.g., People v. Shook, 35 Ill. 2d 597, 599, 221 N.E.2d 290, 291-92 (1966); Monroe v. Butler, 690 F. Supp. 521, 524 (E.D. La. 1988) (and cases cited therein), aff’d, 853 F.2d 924 (5th Cir. 1988), reported in full, 883 F.2d 331 (5th Cir. 1988), cert, denied, 487 U.S. 1247, 101 L. Ed. 2d 958, 109 S. Ct. 7 (1989).
As Illinois courts are required to follow the Seventh Circuit’s opinion in this case, regardless of whether this court agrees with that opinion, the trial court was required to review the reasons given for striking each individual prospective juror, consider the totality of the . circumstances, and compare the State’s strikes against African-Americans against its treatment of similarly situated Caucasians. See Coulter v. Gilmore, 155 F.3d at 922. It is clear that the Seventh Circuit contemplated that the trial judge would conduct a painstaking, detailed analysis of the reasons for excluding certain venirepeople. See Coulter v. Gilmore, 155 F.3d at 918 (distinguishing Mahaffey v. Page, 151 F.3d 671, 679-80 (7th Cir. 1998)). This analysis was to include, but not be limited to, an examination of “the broader pattern of strikes.” See Gilmore, 155 F.3d at 921.
The trial court failed to follow the procedures required by the Seventh Circuit. The trial court failed to perform a “similarly situated” analysis as to all of the challenged venirepeople, or even discuss venirepeople Rhem and Brantley. The trial court did not explicitly address the fact that the State exercised 9 of 10 challenges against African-Americans. The majority notes that this was “not the primary consideration” at the third stage of the Batson procedure, but the Seventh Circuit’s opinion clearly establishes that it was to be a consideration. Given the procedural posture of this case, the record should contain more than a conclusory statement that the relevant circumstances were considered.
Beyond the trial court’s failure to conform to the Seventh Circuit’s opinion, the trial judge unduly relied on a supposed personal knowledge of the original prosecutors.4 A trial judge may consider her experience with local prosecutors as a relevant factor under Batson, but may not overemphasize it. People v. Andrews, 146 Ill. 2d 413, 427, 588 N.E.2d 1126, 1134 (1992). After all, 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).
In this case, the trial judge was not the original trial judge. The prosecutors were not the original prosecutors. The record is unclear as to whether the trial judge knew the first original prosecutor when he was a prosecutor or in his later position as a judge. Clearly, a person may act differently as a judge than as a prosecutor. The record also shows that this trial judge knew the other original prosecutor by reputation, not by experience.
Generally, a reviewing court may give deference to a trial judge’s findings regarding the personalities of the prosecutors. Andrews, 146 Ill. 2d at 435-36, 588 N.E.2d at 1138. However, where the record does not show that the trial judge had experience with the prosecutors as prosecutors, or observed their explanations during the original voir dire, the review is of a cold record and there is no reason to reflexively defer to the trial judge’s conclusions.
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 “[i]t 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. The trial judge rightly emphasized issues of credibility.5 However, when faced with a cold record, the trial judge’s ability to rely on experience must be properly circumscribed to avoid the appearance of partiality in favor of the State.
In sum, the majority opinion’s conclusion that there was “nothing deficient” in the most recent Batson proceedings is misplaced. For all of the aforementioned reasons, I concur in the majority opinion’s conclusion on the Apprendi issue, but respectfully dissent from the majority opinion’s analysis of the Batson issue and would remand the case for further proceedings.
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.”
At the third step of Batson, the demeanor and credibility of the prosecutor(s) may be as relevant as the demeanor of the prospective jurors. See Hernandez v. New York, 500 U.S. 352, 365, 114 L. Ed. 2d 395, 409, 111 S. Ct. 1859, 1869 (1991) (plurality op.).. The determination of those issues lies peculiarly within the province of the trial judge. People v. Hudson, 195 Ill. 2d 117, 137 (2001). Thus, Batson and its progeny encompass the trial judge’s concerns.