In re A.S., 2017 IL App (1st) 161259-B (March). Episode 335 (Duration 15:09)

In a criminal trial what is a Batson Challenge?

State fails to raise a race neutral reason for its jury strikes, reversal required.

More information on what happens during an Illinois criminal trial can be found here.

See Episode 255

Back To Batson Basics – Episode 255.

Procedural History

There there was a remand for the trial court to consider any race neutral reasons for the state’s peremptory strikes.

On remand the trial judge found a race neutral reason.

Reviewing court now reverses that decision.

Picking The Jury

Bill B.

On the first day of jury selection, the State successfully challenged for cause Bill B., who had failed to disclose a driving under the influence (DUI) conviction.

Connie T.

Also on the first day of jury selection, the State disclosed that 56-year-old Connie T. had failed to disclose a prior criminal matter: a theft charge from 1977 for which she received supervision. The State proposed that she be stricken for cause. When the court wavered over the significance of a nearly 40-year-old theft case, the court asked the prosecutor whether she felt strongly enough about it to use a peremptory challenge. The prosecutor responded: “We have to be consistent so we have to ask.”

The witness said she just forgot about it.

It happened when she was 18 years old.

When the court refused, the State did not press the issue by expressing its belief that Connie T. had lied about failing to remember the 1977 case.

The State then used peremptories to strike both Connie T. and Madelyn B., another black member of the venire.

Joe W.

At that point, the State had used three peremptories to strike black members of the venire, which prompted respondent’s Batson challenge.

The next black member of the venire questioned was Joe W.

After he was questioned by the court, Joe W. volunteered, “I’m beginning to feel bad now actually. I got medical conditions.” He further revealed he was an insulin-dependent diabetic and had high blood pressure, cholesterol problems, and glaucoma. In chambers with counsel, the court raised the possibility of dismissing Joe W. for cause given his health issues, but counsel for respondent asked that he be brought in for questioning. At that point, the State revealed that Joe W. had a 13-year-old DUI conviction that he did not disclose on his juror questionnaire or during the court’s questioning.

Joe W. Said he was not thinking of the DUI as a criminal case.

It happened in 2003 after his brother’s funeral.

Rita J.

At that point, although it had exercised only four of its seven peremptory challenges, the State accepted Joe W. When the State exercised a peremptory against the next black member of the venire, Rita J., the court sua sponte found that there was a prima facie Batson violation and proceeded to ask the State to articulate race-neutral reasons for its use of peremptories.

The State then proffered explanations for its decision to use peremptories against three of the four black members of the venire but failed to articulate, and the court did not inquire about, a reason for the use of a peremptory challenge to strike Connie T.

During the hearing on remand, the parties again addressed the State’s reasons for exercising peremptory challenges against black members of the venire.

Race Neutral Reasons

With respect to Connie T., notwithstanding the court’s observation in denying the State’s challenge for cause during the first hearing that her failure to remember the 1977 case was an “honest mistake,” the State asserted that the prosecutors did not believe Connie T. when she claimed not to recall the case.

In particular, according to the State, its use of a peremptory was based on its belief that Connie T. was not truthful about her recollection of the theft case.

According to the State, Connie T. “repeatedly denied” the case and that it was only after she was “pressed” on the matter that she recalled the details.

Defense counsel argued that the State’s acceptance of Joe W. cast doubt on the legitimacy of its reliance on failure to disclose criminal matters as a race-neutral basis for dismissing prospective jurors. The State responded that the distinction between Joe W. and Connie T. was the State’s assessment of their demeanor when questioned in chambers.

The trial court noted generally that “[t]he State was very consistent in requesting strikes for all who answered the jury card questions in an untruthful way,” and in particular as to Connie T., the court found that she “was stricken for race neutral reasons[,] specifically, the State felt that she was being evasive in her answers and not truthful with the Court.”

As to Joe W., the court found that “[the ASA indicated that in their opinion Joe W. was truthful and believable and he was actually very likeable.” The court acknowledged that the State’s failure to exercise a peremptory against Joe W. was contrary to its position that failure to disclose criminal matters was grounds for dismissal but noted that the State “did believe he made a mistake.”

Comparing Joe W. and Connie T., the court stated: “[The State] did not believe her so there’s a distinction that I’m making today between Joe W. and Connie T.; that one was believable; one was not believable.”

Ultimately, the trial court concluded that “[there was no individual exclusion of any of these African-Americans from the jury for anything other than a race neutral reason.”

Appellate Court Scrutinizes The Strikes

Now, back on appeal where the reviewing court retained jurisdiction, the court said defendant sustained his burden as to Connie T.

Because the State’s reason for exercising a peremptory against Connie T. rests on the State’s representation, made for the first time on remand, that it did not believe her when she initially failed to recall her theft case, that subjective observation is subject to close scrutiny.

Had the State, in fact, believed that Connie T. was, as it now contends, “lying” about her recall, we would have expected the State to take issue with the court’s assessment of her demeanor and its refusal to dismiss her. But the State said nothing and instead exercised a peremptory.

Conversely, with respect to Joe W., the State claimed on remand that it found believable his failure to recall his 13-year-old DUI conviction until he was reminded of it in chambers. The State elaborates that Joe was credible and “likeable” when he explained that he equated criminal matters with “boom, boom” and not with his DUI.

Yet, notwithstanding the State’s current position that it believed Joe W. genuinely overlooked his criminal case, the State still moved to strike Joe W. for cause, even after hearing his explanation. If the State genuinely believed Joe W. did not remember his DUI conviction and, therefore, did not deliberately fail to disclose it, the rationale for striking him for cause disappears.

On the other hand, if non disclosure, per se, was the determining factor, then the State should have used a peremptory against Joe W., just as it did for Bill B., who was dismissed for cause for failing to disclose a DUI, no questions asked.

At the time the State failed to exercise a peremptory against Joe W., it had three peremptories left. Joe W. became the eleventh juror. Thus, it is apparent that at that late stage in jury selection, the State could have used a peremptory against Joe W. without risking its later inability to strike an unacceptable juror.

Appellate Court Calls B.S.

It is difficult to give much credence to the State’s fundamentally subjective reasons for dismissing Connie T. while keeping Joe W.

More problematic is the failure of the trial court to reconcile its earlier findings with its acceptance on remand of the State’s newly articulated reason for striking Connie T.

During the first hearing, the court readily found Connie T. believable and specifically determined that she was not lying. During the in-chambers questioning, the court had the same opportunity to observe Connie T.’s demeanor as did the State. When, on remand, the State asserted that contrary to the court’s conclusions, it believed Connie T. was lying, it was incumbent on the court to evaluate the sincerity of this race-neutral explanation.

Yet the court never probed the State’s asserted belief by, for example, asking the State to articulate precisely what it was about Connie T.’s demeanor that led to the conclusion that she was lying or asking the prosecutor why, if she had concluded Connie T. was lying, she did not press her request to dismiss her for cause.

And the State’s characterization of the exchange during chambers questioning is demonstrably incorrect; the court did the questioning, and Connie T. was not “confronted” or “pressed” by the State about anything.

The transcript on remand does not reveal that the court undertook “a sincere and reasoned attempt to evaluate the prosecutor’s explanations in light of the circumstances of the case.” During the third stage of a Batson hearing, a trial court is often called upon to assess the credibility of the lawyers exercising peremptory challenges. But, here, the trial judge’s observation about not seeing any sign of discrimination by the lawyers in his courtroom, to which we defer, is of marginal relevance given that, under Batson, the issue is not racial animus but the respondent’s right to a fair trial, including a jury selection process untainted by improper exclusion of prospective jurors based on race.

The State, like any other party to a jury trial, wants to seat a jury that will be favorable (or at least not hostile) to its case.

Batson focuses on the reason the State believes a particular juror should not be seated, and if the juror’s race is the reason, a violation exists despite the fact that the prosecutor does not otherwise discriminate against or harbor any animus toward that race.

Further, other than the court’s repetition of the State’s reasons for striking Connie T. and retaining Joe W., i.e., that the State believed one and disbelieved the other, the court made no finding that the State’s assessment of Connie T.’s and Joe W.’s truthfulness was sincere. And given the significant indications we have discussed above that the State’s subjective reason for striking Connie T. was, in fact, pretextual, we conclude respondent has sustained his burden to show a Batson violation and is, consequently, entitled to a new trial.

Reversed and remanded.