IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS FIRST DISTRICT SIXTH DIVISION
August 01, 2003
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
DWAYNE COULTER, DEFENDANT-APPELLANT.
Appeal from the Circuit Court of Cook County Honorable Colleen McSweeney-Moore, Judge Presiding.
The opinion of the court was delivered by: Justice Gallagher
On March 3, 2003, the United States Supreme Court vacated this court's judgment in People v. Coulter, 321 Ill. App. 3d 644, 748 N.E.2d 240 (2001) (Coulter II), and remanded the case to this court for further consideration in light of its decision in Miller-El v. Cockrell, 537 U.S. 322, 154 L. Ed. 2d 931, 123 S. Ct. 1029 (2003). For the reasons stated herein, we affirm.
Although our previous opinion included a comprehensive summary of the state and federal court proceedings that have preceded this action, a brief review of the case's 16-year procedural history is warranted here. In 1987, Dwayne Coulter, an African-American, was convicted of the first degree murder of a white police officer. On appeal, Coulter contended that the State's use of peremptory challenges to strike African-American venire members violated Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). This court rejected Coulter's arguments and affirmed his conviction. People v. Coulter, 230 Ill. App. 3d 209, 594 N.E.2d 1163 (1992) (Coulter I). The Illinois Supreme Court denied his petition for leave to appeal. People v. Coulter, 146 Ill. 2d 636, 602 N.E.2d 461 (1992). Coulter proceeded to federal court, where the Seventh Circuit remanded the case to the state trial court for a new Batson hearing. Coulter v. Gilmore, 155 F.3d 912, 922 (7th Cir. 1998) (Gilmore).
On remand, the trial judge, who was not the same jurist who presided at Coulter's trial, reviewed Coulter's Batson claim, along with the record of jury selection in Coulter's trial. The trial court found that the State's articulated reasons for excusing the African-American jurors were race-neutral and not pretextual. Coulter again appealed to this court, contending that the State failed to meet its burden of showing that legitimate, race-neutral explanations existed for each of the nine peremptory challenges used to excuse African-American venire members. Coulter asserted that the trial court did not conduct a sufficient Batson hearing on remand. Coulter II, 321 Ill. App. 3d at 654, 748 N.E.2d at 248. Coulter sought a new trial or, in the alternative, asked this court to remand the case to the trial court for another Batson hearing. Coulter II, 321 Ill. App. 3d at 654, 748 N.E.2d at 248. This court affirmed, finding that the trial court conducted a comprehensive review of his Batson claims. Coulter II, 321 Ill. App. 3d at 656, 748 N.E.2d at 250. The Illinois Supreme Court again denied Coulter's petition for leave to appeal. People v. Coulter, 196 Ill. 2d 551, 763 N.E.2d 321 (2001). He appealed to the United States Supreme Court, which has vacated Coulter II and remanded the case to this court for further consideration in light of Miller-El. Coulter v. Illinois, 537 U.S. 322, 154 L. Ed. 2d 931, 123 S. Ct. 1384 (2003).
Miller-El v. Cockrell
A Texas jury convicted petitioner Thomas Miller-El of capital murder and sentenced him to death. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 944, 123 S. Ct. at 1034-35. After raising an unsuccessful Batson claim in the state and federal courts, Miller-El filed a petition for writ of habeas corpus. Miller-El, 573 U.S. at ___, 154 L. Ed. 2d at 945, 123 S. Ct. at 1036. Both the federal district court and the Fifth Circuit Court of Appeals denied Miller-El's request for habeas relief. Miller-El v. Johnson, 261 F.3d 445, 452 (5th Cir. 2001).
In its opinion in Miller-El, the Supreme Court addressed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (28 U.S.C. §2241 et seq. (Supp. 2003)), which restricts the power of federal courts to grant habeas relief to state prisoners. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 950, 123 S. Ct. at 1039-40. Under the AEDPA, Miller-El's right to the review of the denial of his habeas petition is not automatic. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 949, 123 S. Ct. at 1039. For a federal appeals court to consider the merits of Miller-El's appeal, Miller-El must seek a certificate of appealability (COA) to review the district court's ruling. The COA requirement is designed as a threshold for review of appeals and is intended to reduce delay caused by frivolous habeas proceedings. To issue a COA, the court must find that the petitioner demonstrated "a substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c)(2) (Supp. 2003). In denying Miller-El's request for a COA, the Fifth Circuit Court of Appeals noted that a "substantial showing" occurs when a petitioner has raised issues that are "debatable among jurists of reason, that another court could resolve the issues differently, or that the issues are adequate to deserve encouragement to proceed further." Miller-El v. Johnson, 261 F.3d at 449, citing Slack v. McDaniel, 529 U.S. 473, 146 L. Ed. 2d 542, 120 S. Ct. 1595 (2000).
Ruling on Miller-El's case, the United States Supreme Court stated that "[a]t issue here are the standards AEDPA imposes before a court of appeal may issue a COA to review a denial of habeas relief in the district court." Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 943-44, 123 S. Ct. at 1034. The Court noted that a COA ruling does not weigh the merits of a petitioner's claim but instead involves "an overview of the claims in the habeas petition and a general assessment" of the merits of the petition. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 950, 123 S. Ct. at 1039. For a COA to issue, the petitioner need not show he is entitled to ultimate relief; instead, he must show that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 951, 123 S. Ct. at 1040. Applying that standard to the facts of Miller-El's case, the Court reviewed his Batson claim and held that Miller-El was entitled to a COA because it was debatable that purposeful discrimination occurred in jury selection. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 952-57, 123 S. Ct. at 1042-45. The Supreme Court reversed the Fifth Circuit Court of Appeals and remanded the case to the federal district court for further proceedings. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 957, 123 S. Ct. at 1045.
At the request of this court, the office of the State Appellate Defender and the office of the Cook County State's Attorney have submitted briefs addressing Miller-El's applicability to Coulter's case. The Appellate Defender contends that although Miller-El discussed the issue of a COA, the Supreme Court also "articulated the relevant factors to be considered in analyzing a third-stage Batson violation." In response, the State asserts that Miller-El involves a federal habeas corpus proceeding governed by the AEDPA and that Miller-El recognizes the same three-step Batson analysis that the trial court used on remand in Coulter's case.
Although the Appellate Defender does not raise this argument, we first address the procedural postures of both cases and find that the AEDPA-related discussion in Miller-El does not relate to Coulter's proceedings. As the Seventh Circuit previously recognized in Gilmore, Coulter's habeas petition was considered using pre-AEDPA standards because the petition was filed in 1993, prior to the effective date of the AEDPA. Gilmore, 155 F.3d at 917; Lindh v. Murphy, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997). Under that pre-AEDPA standard, when reviewing a Batson claim via a habeas petition, a factual determination made after a hearing on the merits is entitled to a presumption of correctness if fairly supported by the record as a whole; however, that presumption could be rebutted by convincing evidence. 28 U.S.C. §2254(d) (1994). In Gilmore, the Seventh Circuit gave the state court's findings of fact a presumption of correctness but held that Coulter's Batson rights were denied and remanded the case for another hearing. Gilmore, 155 F.3d at 921-22. The Seventh Circuit stated that it expressed "no opinion on how [Coulter's Batson claims] would be resolved under the far more deferential rules established by the AEDPA." Gilmore, 155 F.3d at 922.
Secondly, we have reviewed Coulter's petition for writ of certiorari, which led to the Supreme Court's vacatur of Coulter II and the remand of this case for our further consideration. In the petition, the Appellate Defender asked the Supreme Court to "clarify the proper analysis for third-stage Batson review and give guidance to the lower courts on correct `totality of the circumstances' evaluation." At the close of the petition, the Appellate Defender asks the Supreme Court to grant certiorari to "give guidance to the lower courts on what constitutes purposeful discrimination under Batson."
As previously noted, the Supreme Court has ordered this court to further consider our opinion in Coulter II in light of its decision in Miller-El. We therefore consider whether Miller-El demands a substantive change in the Batson analysis that the trial court used on remand. Having given the Supreme Court's order due weight and consideration, and having carefully reviewed Miller-El and its relevance to Coulter's case, this court respectfully concludes that the Court's ruling in Miller-El does not affect the validity of the trial court's analysis of Coulter's Batson claims.
In Miller-El, the Court analyzed the standard to be used in determining when a federal appellate court may issue a COA to review a federal district court's denial of habeas relief. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 943-44, 123 S. Ct. at 1034. As the Appellate Defender acknowledges, in Miller-El, the Court addressed the issue of whether the petitioner could appeal the denial of his habeas petition and whether a COA should have issued. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 944, 123 S. Ct. at 1034. The Court referred to its analysis as a "threshold" examination and specifically noted that "[w]hile a COA ruling is not the occasion for a ruling on the merit of petitioner's claim, our determination to reverse the Court of Appeals counsels us to explain in some detail the extensive evidence concerning the jury selection procedures." Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 946, 956-57, 123 S. Ct. at 1036, 1044-45.
Therefore, the Court in Miller-El admittedly did not base its ruling on the merits of Batson but instead discussed whether Miller-El offered enough evidence to support the issuance of a COA, which would allow Miller-El to appeal the district court's denial of his habeas petition. Moreover, in considering that question, the Court outlined the same three-step Batson analysis that this court used in Coulter II. First, the defendant must make a prima facie showing that a peremptory challenge was exercised on the basis of race. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 945, 123 S. Ct. at 1035. To do so, the defendant must prove three factors: (1) he or she is a member of a cognizable racial group; (2) the prosecutor exercised peremptory challenges to remove members of defendant's race from the venire; and (3) sufficient facts and circumstances existed to raise an inference that the prosecution used the peremptory challenges to exclude venire members on the basis of race. Coulter II, 321 Ill. App. 3d at 654-55, 748 N.E.2d at 249, citing Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723. If that showing has been made, the State must articulate race-neutral justifications for striking the potential juror at issue. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 945, 123 S. Ct. at 1035. The third stage of Batson arises when the trial court considers those reasons and determines if the defendant has established purposeful discrimination. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 945, 123 S. Ct. at 1035.
Noting that it was at the third stage of a Batson analysis, the Court stated in Miller-El that the key issue was the credibility of the prosecutor's race-neutral explanations. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 951, 123 S. Ct. at 1040. The Court stated that the trial judge did not engage in a credibility analysis because Miller-El's trial occurred prior to its own decision in Batson. Instead, the trial court followed the then-precedent of Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965), which only required the judge to examine whether the prosecution's use of peremptory challenges was part of a pattern of discrimination. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 944, 123 S. Ct. at 1035. In a pretrial hearing held pursuant to Swain, Miller-El had presented both direct and historical evidence of a pattern and practice of discrimination in voir dire in that particular court system at the time of Miller-El's trial. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 946, 123 S. Ct. at 1036. Miller-El's counsel presented the testimony of current and former prosecutors and judges who testified they were instructed to exclude African-Americans from jury service. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 948, 123 S. Ct. at 1038. In addition, at a hearing held two years after Miller-El's trial, the original trial judge admitted the evidence offered at the Swain hearing and heard additional evidence in order to consider Miller-El's claims under Batson. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 945, 123 S. Ct. at 1035. Miller-El presented evidence that the prosecutors questioned African-American and Caucasian venire members differently regarding their views on capital punishment. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 946-47, 123 S. Ct. at 1036-37.
The Court noted that while the prosecutors had offered race-neutral justifications for their strikes, the trial court did not consider the credibility of the explanations because Swain did not so require. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 953-54, 123 S. Ct. at 1042. The Court stated that statistical evidence raised a question as to whether African-American venire members were excluded based solely on their race, noting that only one African-American served on the jury and "prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members," with 10 of the 14 strikes used against African-Americans. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 953, 123 S. Ct. at 1042. Applying the AEDPA to Miller-El's case and noting that its task was to consider the debatability of his claim and not to resolve that debate, the Court held that "the statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason." Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 953, 123 S. Ct. at 1042.
The Appellate Defender argues that Miller-El requires this court to remand Coulter's case for a new trial or for another third-stage Batson hearing. The Appellate Defender contends that in Coulter II, neither the original trial judge nor the judge who again considered Coulter's Batson claims on remand made any credibility findings. The Appellate Defender further asserts that in reviewing the trial court's findings on remand, this court did not adequately consider the pattern of strikes against African-Americans, as the Supreme Court did in Miller-El. In addition, the Appellate Defender claims that this court failed to consider the prosecutors' demeanor, the reasonableness or improbability of the prosecutors' race-neutral explanations and whether the explanations had some basis in trial strategy. Lastly, the Appellate Defender asserts that Miller-El mandates that a Batson inquiry include a "comparative juror" analysis, specifically, considering the strikes against African-American venire members compared to similarly situated Caucasian potential jurors. *fn1 The Appellate Defender claims that Coulter II lacked any such analysis and that, to this date, "no court has engaged in a proper Batson review, including a comparative analysis of the challenged minority venirepersons and the similarly situated nonminority jurors."
Contrary to the Appellate Defender's position, the Supreme Court did not proclaim any new requirements of a Batson analysis. To address the Appellate Defender's assertions specifically, the trial court that reviewed Coulter's Batson claims on remand was not required to study the "pattern of strikes" against minority venire members. The "pattern" analysis was discussed in Miller-El in analyzing the pre-Batson factors articulated in Swain. In Miller-El, the trial court did not consider the credibility of the prosecutor's reasons for using peremptory strikes because, under Swain, such an analysis was not mandated. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 953-54, 123 S. Ct. at 1042-43.
In Coulter's case, the trial court on remand complied with Batson. The court expressly considered the credibility of the prosecutor's proferred reasons for striking particular jurors. Coulter II, 321 Ill. App. 3d at 652, 748 N.E.2d at 247. The trial court was provided with the prosecution's reasons for striking all of the challenged jurors and considered the credibility of those reasons under a "totality of the circumstances" test. The court also compared and contrasted the jurors who were selected with those in the venire. In addition, the trial court expressly considered the number of African-American jurors selected in relation to the number of African-Americans in the venire. Three African-American jurors sat on the twelve-person jury, with two additional African-Americans serving as alternate jurors. Thus, 5 members of the 14-member jury (35%) were African-Americans, a greater percentage of minorities than that in the venire as a whole (16 African-Americans out of 55 venirepersons). After completing that analysis, the trial court correctly concluded that the jury selection in Coulter's case did not violate Batson.
In summary, because the Supreme Court's discussion of the AEDPA does not relate to Coulter's proceedings, because the Supreme Court did not alter the third-stage Batson analysis, and because the trial court previously performed a thorough review of Coulter's Batson claims under a totality of the circumstances test, we affirm the decision of the trial court. Affirmed.
O'BRIEN, P.J., concurs.
PRESIDING JUSTICE CAMPBELL dissenting (filed as of August 12, 2003):
This case has now been remanded to the Illinois courts not only by the United States Court of Appeals for the Seventh Circuit, but also by the United States Supreme Court, for reconsideration in light of Miller-El. The majority opinion "respectfully concludes that the Court's ruling in Miller-El does not affect the validity of the trial court's analysis of Coulter's Batson claims." Maj. op. at 6. As the majority's original analysis was deeply flawed, and its analysis of Miller-El equally so, I must again respectfully dissent.
A brief chronology of this case may be useful. In Coulter I, this court remanded for a proper Batson hearing, as the trial court had collapsed the Batson hearing into an undifferentiated review of defense and State contentions. Coulter I, 230 Ill. App. 3d at 221, 594 N.E.2d at 1171. *fn2 The procedure that the trial court then followed was "less than ideal," as Coulter was unable to attack the reasons offered by the State until the hearing on his motion to reconsider, and the trial court exhibited an unjustified, open hostility toward defense counsel in this capital case. Coulter I, 230 Ill. App. 3d at 222, 594 N.E.2d at 1171-72. Nevertheless, this court deemed the record sufficient for review after that remand. Coulter I, 230 Ill. App. 3d at 222, 594 N.E.2d at 1172. This court affirmed Coulter's conviction, in part because the evidence was not closely balanced. See Coulter I, 230 Ill. App. 3d at 219-21, 594 N.E.2d at 1170-71. Our supreme court denied Coulter's petition for leave to appeal. People v. Coulter, 146 Ill. 2d 636, 602 N.E.2d 461 (1992).
Coulter then sought a federal writ of habeas corpus. The district court dismissed the petition, but the Seventh Circuit reversed and remanded the case for further consideration. Coulter v. Gramley, 93 F.3d 394 (7th Cir. 1996). On remand, the district court granted relief to Coulter, ordering that he be released or retried within 120 days. Coulter v. Gramley, 945 F. Supp. 1138, 1143 (N.D. Ill. 1996). On appeal, the Seventh Circuit affirmed, but concluded that:
"an intermediate solution is possible, which is to require Coulter to be released unless within 120 days the state court holds a new hearing on his Batson claim at which the proper methodology for evaluating his claim is followed - that is, in addition to reviewing the reasons given for striking each juror, it considers the totality of the circumstances and compares the prosecutor's strikes against African-Americans against its treatment of similarly situated Caucasians. In the interest of comity and the possible efficiency of avoiding a new trial, we conclude that this more limited grant of the writ is the proper course to follow. We therefore AFFIRM the judgment of the district court, but modify its order to grant the writ unless within 20 days the state court holds a new hearing on Coulter's Batson claim in accordance with this opinion." (Emphases added). Coulter v. Gilmore, 155 F.3d 912, 922 (7th Cir. 1998).
On remand, a trial judge other than the original trial judge ruled against Coulter's Batson claim. The trial court did not compare the State's strikes against African-Americans against its treatment of similarly situated Caucasians. On appeal, this court stated that "it is not the task of this court to analyze the trial court's actions in the wake of the Seventh Circuit's opinion." Coulter II, 321 Ill. App. 3d at 654, 748 N.E.2d at 248. *fn3
Coulter's case is now before this court again, because the United States Supreme Court took the unusual step of vacating Coulter II and remanding for further consideration in light of Miller-El. Where a judgment order is vacated, the effect is to leave the pleadings as if no judgment were ever entered. Flavell v. Ripley, 247 Ill. App. 3d 842, 847, 617 N.E.2d 1342, 1345 (1993); see Black's Law Dictionary 1546 (7th ed. 1999). Nevertheless, the latest majority opinion must be read as incorporating the analysis of the majority opinion in Coulter II; the cursory treatment given to the Batson hearing in the latest majority opinion would not withstand scrutiny under Miller-El, as will be demonstrated below.
This latest majority opinion repeats and magnifies the errors of Coulter II. The majority opinion takes the position that "the Supreme Court did not proclaim any new requirements of a Batson analysis" in Miller-El. Maj. op. at 9. However, Miller-El shows that Coulter II was based on a faulty analysis of the existing requirements of a Batson analysis.
The majority opinion states that "the trial court that reviewed Coulter's Batson claims on remand was not required to study the 'pattern of strikes' against minority venire members." Maj. op. at 9. Coulter II so held because Coulter's prima facie case had already been made, and the trial judge was at the third stage of Batson, in which she assessed the genuineness and persuasiveness of the State's explanations for striking particular venire members. Coulter II, 321 Ill. App. 3d at 656-57, 748 N.E.2d at 250.
However, Miller-El expressly states that it is concerned with the third step of the Batson framework because the parties conceded that the first two steps had been satisfied. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 951, 123 S. Ct. at 1040. In that context, Miller-El endorses a comparative analysis of the sort ordered by the Seventh Circuit in this case, stating that:
"even though the prosecution's reasons for striking African-American members of the venire appear race neutral, the application of these rationales to the venire might have been selective and based on racial considerations." Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 954, 123 S. Ct. at 1043. *fn4
The Miller-El Court concluded that the denial of a certificate of appealability (COA) in federal habeas corpus proceedings was in error because:
"the District Court did not give full consideration
to the substantial evidence petitioner put forth in support of the prima facie case. Instead, it accepted without question the state court's evaluation of the demeanor of the prosecutors and jurors in petitioner's trial." Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 953, 123 S. Ct. at 1042.
Coulter II made precisely the same error; on remand, the majority opinion repeats it.
The majority opinion attempts to distinguish Miller-El as addressing only the threshold examination of a Batson claim in the context of the denial or issuance of a COA, rather than constituting a decision on the merits of the Batson claim. Maj. op. at 6. However, in stating that it "goes without saying" that evidence from the prima facie case is to be considered at the third step of the Batson analysis, the Miller-El Court cited Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000), which applied that rule on review of a final judgment in an age discrimination case. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 952, 123 S. Ct. at 1041; see Reeves, 530 U.S. at 143, 147 L. Ed. 2d at 117, 120 S. Ct. at 2106. Miller-El thus clarifies that the burdens of production and persuasion applicable in civil rights cases are those to be applied in a Batson hearing. In contrast, the majority opinion stands for the inexplicable proposition that these rules apply in a threshold analysis of a Batson claim in federal habeas proceedings and in reaching a final judgment in a discrimination case, but not in a regular Batson hearing.
The majority opinion, like Coulter II, asserts that a comparison of similarly situated venire members is permissible, but not determinative. Maj. op. at 9 n.1; see Coulter II, 321 Ill. App. 3d at 656-57, 748 N.E.2d at 250. The majority opinion cites United States v. Smith, 324 F.3d 922, 927 (7th Cir. 2003), which relied on Miller-El and Coulter v. Gilmore. Clearly, the Seventh Circuit concluded that Miller-El is consistent with Coulter v. Gilmore, rather than the opposite conclusion suggested in the majority opinion.
Moreover, in Smith, the Seventh Circuit rejected Smith's argument based on a comparative analysis, stating that it was not determinative in Smith's case. Smith, 324 F.3d at 927. In this case, the issue is not whether the comparative analysis was determinative, but whether it is error to ignore a comparative analysis ordered by the Seventh Circuit and sought by Coulter. Obviously, it cannot be said with any degree of certainty whether the comparative analysis would have been determinative in this case, precisely because the trial court failed to consider it.
The majority opinion asserts that "[t]he 'pattern' analysis was discussed in Miller-El in analyzing the pre-Batson factors articulated in Swain." Maj. op. at 9. This assertion is simply incorrect; the evidence of the disparate treatment during voir dire was adduced on remand pursuant to Batson. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 944-48, 123 S. Ct. at 1035-38. A review of section II.C. of Miller-El also shows that it is devoted to the application of the Batson analysis. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 952-56, 123 S. Ct. at 1042-45. Although the Court noted that the original trial judge did not make credibility determinations because they were not required under Swain, the Court made that point to observe that consequently, "the evidence presented to the trial court at the Batson hearing was subject to the usual risks of imprecision and distortion from the passage of time." (Emphasis added.) Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 954, 123 S. Ct. at 1042-43. It is from that point that the Court discussed the disparate treatment of African-American and white venire members. Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 954, 123 S. Ct. at 1043. The majority opinion confuses the evidence of a "pattern of strikes" in a given case under Batson with the evidence of systematic exclusion under Swain.
However, the Miller-El Court's observations regarding credibility determinations are relevant because the Miller-El Court rejected the notion that the reviewing court should have uncritically deferred to the trial court. To be sure, the Miller-El Court stated that generally, "[d]eference is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations." Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 952, 123 S. Ct. at 1041. However, the Miller-El court rejected the federal appeals court's holding that "the presumption of [the state court's] correctness is especially strong, where, as here, the trial court and state habeas court are one and the same." Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 953, 123 S. Ct. at 1043, citing 261 F.3d at 449. The Court also stated that "[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review." Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 952, 123 S. Ct. at 1041. The Miller-El Court "question[ed] the Court of Appeals' and state trial court's dismissive and strained interpretation of petitioner's evidence of disparate questioning." Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 954, 123 S. Ct. at 1043.
In this case, the judge rehearing Coulter's Batson claim was not the original trial judge. The prosecutors on remand were not the original prosecutors. The State did not present testimony from the original trial judge or the original prosecutors. There is no evidence that either of the original prosecutors ever practiced in front of the second judge. In addition, "the evidence at the Batson hearing was subject to the usual risks of imprecision and distortion from the passage of time." (Emphasis added.) Miller-El, 537 U.S. at ___, 154 L. Ed. 2d at 954, 123 S. Ct. at 1043. In short, the second judge was confronted with a cold record of voir dire and was in no better position than this court to review it.
Nevertheless, the second trial judge made credibility determinations based on her personal experience dehors the record with one of the prosecutors and the other prosecutor's professional reputation. 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." 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 "it 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. Moreover, an examination of credibility is an important part of the third stage of the Batson analysis. However, both the Seventh Circuit's opinion in this matter and Miller-El make clear that the examination of credibility should consider whether the explanations offered by the State for striking minority venire members were equally applicable to majority venire members accepted by the State. Performing the comparative analysis would not only have been in accord with the Seventh Circuit's order and consistent with Miller-El, but would also have focused on objective facts about venire members and jurors established in the record. As noted above, the majority opinion's cursory discussion of the Batson hearing and reflexive deference to the trial court is strained and dismissive, similar to the appellate opinion reversed in Miller-El.
Indeed, the latest majority opinion does not even mention that the trial court did not bother to discuss two of the venire members at issue, Rhem and Brantley. See Coulter II, 321 Ill. App. 3d at 656, 748 N.E.2d at 250. The majority in Coulter II concluded that exhaustive findings are not required in all cases, so long as they are "sufficiently specific." Coulter II, 321 Ill. App. 3d at 656, 748 N.E.2d at 250, quoting People v. Fair, 159 Ill. 2d 51, 76, 636 N.E.2d 455, 469 (1994). While not all cases may require exhaustive findings, it must be noted that our supreme court stated in Fair that the trial judge's findings were "sufficiently specific for our purposes." (Emphasis added.) Fair, 159 Ill. 2d at 76, 636 N.E.2d at 469. The Fair court made this statement at the conclusion of a person-by-person analysis of the excluded venire members, based on the transcript of proceedings.
The issue of comparative analysis was not present in Fair. In this case, the State claimed that Rhem and Brantley were being excluded based on their employment history. If Coulter argued that those explanations were pretextual because a white venire member with a similar employment history to Rhem or Brantley was accepted by the State, it would follow that the trial court would have to make a finding that is sufficiently specific for the purpose of review. In the context of a comparative analysis, such a finding necessarily would have to identify the venire members at issue. After all, the exclusion of even one venire member on the basis of race violates Batson. E.g., People v. Andrews, 146 Ill. 2d 413, 434, 588 N.E.2d 1126, 1137 (1992); People v. McDonald, 125 Ill. 2d 182, 200, 530 N.E.2d 1351, 1359 (1988). Indeed, Batson itself emphasized that 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). Given the case law, the trial judge's reliance on the general reputation of persons who may have never prosecuted a case before her, while ignoring the more objective analysis required by the Seventh Circuit's order, and now indisputably proper under Miller-El, was clearly wrong.
In sum, the reasoning of the majority opinion is not in compliance with the analysis applied by the Supreme Court in Miller-El, which the Supreme Court of the United States ordered this court to consider on remand. Applying the principles of Miller-El, the proper course of action would be to remand this case for a Batson hearing where the trial court properly addresses the claim of disparate treatment of jurors. Accordingly, I respectfully dissent.