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July 30, 1992

JANE DOE, Plaintiff,
VILLAGE OF DOWNERS GROVE, et al., Defendants.


The opinion of the court was delivered by: SUZANNE B. CONLON

This case reflects the administrative difficulties a trial court faces in conscientiously effectuating the Supreme Court's directive that racial discrimination shall not be permitted in the jury selection process.

 On February 27, 1992, a jury returned a $ 55,000 verdict against two white Downers Grove police officers, William F. Burnham and Todd Niewold (collectively, "defendants"), for violating the fourth amendment rights of plaintiff "Jane Doe," who is black, by ordering that she be strip searched without lawful justification. *fn1" In addition, the jury assessed punitive damages in the amount of $ 1.00 against each defendant.

 On May 20, 1992, the court granted defendants' motion for a new trial, based on a finding that it committed error in disallowing defendants' unexplained peremptory challenges against two black prospective jurors. At trial, defendants refused to comply with the court's instruction that defendants must accompany any peremptory challenge against a black prospective juror with a race-neutral explanation at sidebar. The court granted defendants a new trial because a prima facie showing of racial discrimination had not been made (nor requested by plaintiff) when the court first instructed defendants to provide race-neutral justification for striking black prospective jurors. For this reason, the court concluded that defendants were improperly denied their statutory right to exercise three peremptory challenges. See 28 U.S.C. ยง 1870.

 Plaintiff now moves the court to reconsider its order granting defendants a new trial, citing recent decisions not previously submitted by the parties in briefing the motion for a new trial. These recent cases were not considered by the court in rendering its decision. Plaintiff contends these cases demonstrate that the challenged procedure was not erroneous and that the court properly effectuated the Supreme Court's directives against racial discrimination in the jury selection process enunciated in Edmonson v. Leesville Concrete Co., U.S. , 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991) and Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).


 A. The Court's Refusal to Allow Defendants' Peremptory Challenges of Two Black Prospective Jurors

 Defendants, who allegedly abused their authority as police officers, are white. Plaintiff, who was allegedly victimized by the unreasonable strip search ordered by defendants, is black. The incident occurred in a predominantly white suburban community. In preparing for its voir dire examination of prospective jurors, the court recognized the clear racial implications of the case, even though plaintiff did not expressly assert a race-based claim. Consequently, before the jury venire was brought to the courtroom on the first morning of trial, the court reminded counsel that the Supreme Court's decision in Edmonson extended application of the Batson prohibition against the racially discriminatory use of peremptory challenges to civil cases. Trial transcript ("Tr.") at 2-3. Specifically, the court stated:

We will be moving a little bit slower today than I usually do because my clerk is ill. So first thing, we have a substitute clerk [who] went down to pick up the jury. But we had a couple of preliminary matters I wanted to discuss with you.
One has to do with Batson versus Kentucky, which the Supreme Court this past year held applies to civil cases. *fn2" And I'm referring to Edmonson (sic) versus Leesville Concrete Company, 114 L. Ed. 2d 660, 111 S. Ct. 2077. And what this means in terms of this case is that if the defense wants to challenge, exercise any peremptive challenges as to a prospective juror who is black, I will need an offer at sidebar as to what nonracial basis you are invoking for excluding the juror.
So what this means in terms of jury selection is that when the panel is tendered to you, if you do wish to exclude a prospective juror who is black, please ask for a sidebar so you can state your reasons and I can make a determination whether or not they are sufficient under Batson or under Edmundson (sic). But I thought we'd better make that clear before we started.

 Id. (Emphasis supplied).

 Defendants neither questioned nor objected to the court's procedure for exercising peremptory challenges against black prospective jurors. Id. Nevertheless, two of the three prospective jurors peremptorily challenged by defendants on a handwritten list tendered to the court's clerk were against black persons. Defendants did not request a sidebar to explain their race-neutral justification for challenging these two black prospective jurors.

MR. RYAN: I'm sorry, your Honor. I thought your Honor said you would not have a sidebar. You did not say we should request a sidebar.
MR. SMOLENS: Judge, are you referring (sic) that there has been a prima facie [case]? There are four black jurors, we exercised peremptories as to two.
THE COURT: You didn't ask for a sidebar. You didn't give me any nonracial justification.
MR. RYAN: Well, your Honor --
THE COURT: What is your nonracial justification ...

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