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SOLER v. MCHENRY

August 14, 1991

JOSE M. SOLER, Plaintiff,
v.
MARY E. McHENRY, et al., Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 Following his arrest for disorderly conduct, Jose Soler filed this lawsuit based on alleged violations of his civil rights. Specifically, Soler accused Arlington Heights police officer Charles F. Waite of using excessive force to effectuate the arrest.

 The case proceeded to trial. During jury selection, Waite used a peremptory challenge to excuse Wanda Motton, the only black person on the venire. Soler objected, suggesting that Motton was excluded solely because of her race. The court overruled Soler's objection, and impaneled the jury.

 The jury returned a verdict in favor of Waite. Soler filed a motion for a new trial, asserting two arguments: 1) that Waite had excluded Motton from the jury on account of her race, in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986) and its progeny; and 2) that the court had erroneously excluded evidence relating to the disposition of the criminal charges against Soler. Waite responded to Soler's motion, and then filed a separate motion to recover costs. Soler neglected to file any memoranda (either in support of his motion for a new trial or in opposition to Waite's motion for costs), despite receiving two extensions of time from the court.

 On April 9, 1991, this court entered an order denying Soler's motion for a new trial. In the same order, the court granted Waite's motion for costs, assessing costs against Soler in the amount of $ 3,082.46. Soler now urges the court to reconsider the denial of his motion for a new trial and the award of costs to Waite.

 I. Soler's Motion for a New Trial1

 The Equal Protection Clause prohibits the use of peremptory challenges to exclude jurors on the basis of race. Batson, 476 U.S. at 89. *fn2" The discriminatory exclusion of even one juror violates the mandate of Batson, regardless of whether it occurs in a civil or criminal case. Edmonson v. Leesville Concrete Co., 114 L. Ed. 2d 660, 111 S. Ct. 2077, 2087-88 (1991).

 Initially, Waite argues that Soler may not object to the exclusion of a black juror because Soler himself is not black. The Supreme Court recently considered and rejected this argument. In Powers v. Ohio, 113 L. Ed. 2d 411, 111 S. Ct. 1364, 1373 (1991), the Court stated that "to bar petitioner's claim because his race differs from that of the excluded jurors would be to condone the arbitrary exclusion of citizens from the duty, honor, and privilege of jury service." Quite simply, "race is irrelevant to a defendant's standing to object to the discriminatory use of peremptory challenges." Id. Soler may assert the constitutional claim at issue even though he does not share the same race as the excluded juror.

 As the objecting party, Soler carries the burden of proving purposeful discrimination. Cf. United States v. Nichols, 937 F.2d 1257, 1260 (7th Cir. 1991). Ordinarily, Soler would be required to first establish a prima facie case of discrimination, and then the burden would shift to Waite to present a nondiscriminatory reason for the peremptory challenge. Batson, 476 U.S. at 96-97. In this case, however, Waite articulated a reason for the challenge before Soler presented any relevant facts in support of his objection. Since Waite offered an explanation before Soler had a chance to make a prima facie showing of discrimination, the question of whether Soler has made such a showing is moot. Hernandez v. New York, 114 L. Ed. 2d 395, 111 S. Ct. 1859, 1866 (1991).

 The primary question, then, is whether Waite gave a race-neutral reason for his peremptory strike. To withstand scrutiny, Waite's explanation must be "clear and reasonably specific"; but it "need not rise to the level justifying exercise of a challenge for cause." Batson, 476 U.S. at 97-98. Unless the explanation given is inherently discriminatory, it will be deemed race neutral. Hernandez, 111 S. Ct. at 1866.

 Waite explained that he excluded Motton because she was employed as a cardiology technologist. Motton's occupation is significant because Soler alleged that the arrest had aggravated his heart condition. In Waite's view, Motton's training and experience with the kind of heart problems suffered by Soler could color her ability to evaluate the facts from a neutral perspective.

 Soler contends that Waite's explanation is merely a pretext for purposeful discrimination. This court disagrees. Soler has offered no evidence that tends to support his allegation of discrimination. The explanation given by Waite does not reflect an intent to exclude blacks from the jury. His explanation is related to facts of this specific case and not some class-based characteristic or group affiliation. The court sees no reason to doubt the sincerity of Waite's reason for excluding Motton. Nothing in his demeanor or statements during voir dire support an inference of racial discrimination. It is also worth noting that Waite defended his exclusion of Motton without any prompting by the court. See id. at 1872 ("the court could have relied on the fact[] that the prosecutor defended his use of peremptory challenges without being asked to do so by the judge").

 In support of his position, Soler emphasizes that the peremptory challenge had a disproportionate impact on minorities because no blacks were left sitting on the jury. But this fact, standing alone, does not translate into a per se equal protection violation. Id. at 1867. The court must look at the intended consequences, not merely the consequences themselves. Id. "Unless [Waite] adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principle of ...


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