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In re A.S.

Court of Appeals of Illinois, First District, Second Division

October 7, 2016

In re A.S., a Minor
v.
A.S., a Minor, Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal from the circuit court of Cook County, No. 15-JD-901; the Hon. Steven James Bernstein, Judge, presiding.

          Michael J. Pelletier, Patricia Mysza, and Rebecca Cohen, of State Appellate Defender's Office, of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Iris G. Ferosie, Assistant State's Attorneys, of counsel), for the People.

          Justices Neville and Pierce concurred in the judgment and opinion.

          OPINION

          MASON, JUSTICE.

         ¶ 1 After a jury trial, [1] minor respondent A.S. was adjudicated delinquent of the offense of residential burglary and sentenced to the Juvenile Department of Corrections. Respondent seeks a new trial based on his claim that the State used peremptory challenges to strike prospective black jurors without providing a race-neutral explanation as required under Batson v. Kentucky, 476 U.S. 79 (1986), and that the trial court did not fulfill its duty to closely evaluate the State's proffered reasons for striking these panel members. Alternatively, respondent contends that the State's failure to provide any reason for its peremptory challenge to one black member of the venire and the trial court's failure to inquire into the reason for the challenge as well as other irregularities in the proceedings require remand for a new Batson hearing. We agree with respondent's alternative argument and reverse and remand for further Batson proceedings.

         ¶ 2 BACKGROUND

         ¶ 3 We confine our discussion of the facts to a summary of the jury selection process prior to respondent's trial. Jury selection spanned two days. On the first day, January 6, 2016, the State challenged for cause the first black member of the venire, Charles H. because he failed to disclose his criminal history, including charges for unlawful use of a weapon and attempted arson. The State also used challenges for cause against Bill B. and Kenneth J., two white males, for failing to disclose prior arrests during voir dire. Bill B. failed to reveal a DUI arrest and Kenneth J. did not disclose a battery charge from 1996.

         ¶ 4 Over the remainder of jury selection conducted that day, the State proceeded to use sequential peremptory challenges to strike three black members of the venire: Addie M., Madelyn B. and Connie T.

         ¶ 5 With respect to Connie T., a clerical worker for the Chicago Teachers Union, the State initially proposed to strike her for cause because she had not disclosed a theft conviction from 1977 for which she received supervision. It is unclear from the record whether this conviction was expunged. At the insistence of respondent's counsel, Connie T. was questioned in chambers. She at first did not remember the 39-year-old charge, but eventually recalled that in her teens she was in a store with her boyfriend who put an item in her purse without her knowledge and she was stopped on leaving the store. The State asked Connie T. no questions. Upon hearing Connie T.'s explanation, the court denied the State's challenge for cause and the State elected to use a peremptory challenge to dismiss her.

         ¶ 6 Respondent's counsel then raised a Batson challenge based on the State's conduct in striking Charles H. for cause and using peremptories to strike the three remaining black members of the venire. Counsel argued that these challenges had resulted in the dismissal of every prospective juror who was black.

         ¶ 7 After hearing argument, the trial court reiterated its belief that it had properly granted the State's motion to strike Charles H. for cause given his failure to disclose past arrests for serious crimes. The court further determined that respondent had not made a prima facie showing that that State's use of three of its peremptories against Addie M., Madelyn B., and Connie T. was racially motivated. Referencing Connie T., the court commented that "I think there's been some consistency in [the State's] feeling with respect to failure to disclose" past criminal matters.

         ¶ 8 Requesting to make a record, the prosecutor noted that she had consistently stricken for cause jurors of any race who failed to disclose prior arrests during voir dire and that she had used a peremptory challenge against Holly B., a white woman, in addition to the three black women. Finally, the prosecutor noted that of the 40-person venire, "fewer than 10" and maybe only "five or six" were black.

         ¶ 9 When jury selection resumed the following day, respondent's counsel requested a mistrial, again based on the claimed Batson violation. Counsel noted that A.S. was black and the complaining witness was white. The State repeated the previous day's arguments and posited that, in any event, respondent's motion was premature given that jury selection had not concluded. The trial court adhered to its finding that respondent had not made out a prima facie case of a Batson violation, postponed ruling on respondent's motion for a mistrial, and resumed jury selection.

         ¶ 10 Joe W., a black man who indicated during questioning that he had a number of health problems and was not feeling well, was interviewed in chambers. Joe W. indicated that he had diabetes and high blood pressure and expressed doubt that he could make it through the trial. Ultimately, when asked if he thought he could serve if the court attended to any problems that arose by taking breaks or having juice available, Joe W. agreed that he could.

         ¶ 11 Joe W. had failed to disclose a DUI arrest from 2003. When questioned about the arrest by the trial court, he indicated that he forgot about it. Joe W. also indicated that he really didn't consider the DUI a "criminal" matter. Notwithstanding the previous day's assertion that it had challenged any prospective juror, regardless of race, who failed to disclose prior arrests, the State asked Joe W. no questions and accepted him as the 11th juror, as did respondent's counsel.

         ¶ 12 After the parties had selected 12 jurors, they proceeded to the selection of alternate jurors. The State used a peremptory challenge against Rita J., a black woman who had worked for 26 years as a therapist for the Department of Children and Family Services (DCFS). The State asked no questions of Rita J. during voir dire prior to using the peremptory. At that point, apparently based on the State's use of four of its five peremptories to dismiss black jurors, the court sua sponte found that respondent had made a prima facie case of a Batson violation ("now I'm saying that there is a pattern") and proceeded to question the State regarding the reasons for striking black members of the venire.

         ¶ 13 Starting with Rita J., the State cited her work history and argued that a DCFS social worker "may have some tendency to be lenie[nt] against [sic] the minor respondent." Respondent's counsel, who did not have his jury selection notes with him in chambers, pointed out that other members of the venire were in social service professions and he "guessed" that the State had accepted one or more of them. Based on the State's explanation, the court found the State's reason for exercising a peremptory against Rita J. was based on factors other than her race.

         ¶ 14 The parties next addressed the dismissal of Addie M. During voir dire questioning, Addie M. had disclosed that 12 years earlier her home had been surrounded on one occasion by police who were there to arrest her son on a robbery warrant. Addie M.'s son was later convicted and served prison time. The prosecutor stated that, as a result of that incident, the State believed Addie M. "might have some feelings about the police that would be adverse to [the] prosecution." Respondent's counsel pointed out that another juror, Shelly L., a white woman, also had a son involved in a criminal matter where police came to her home looking for him, an argument ensued, and she later determined he was involved. The prosecutor asserted that the circumstances described by Addie M. were materially different as there was no indication that police had surrounded Shelly L.'s home or that her son had been convicted or served time on any criminal charge. Based on this explanation, the trial court concluded that the State had offered a race-neutral reason for Addie M.'s dismissal.

         ¶ 15 With respect to Madelyn B., she revealed on voir dire that she worked for Breakthrough Urban Ministries, an organization that serves a homeless population on the west side of Chicago. In articulating the reason for dismissing her, the State indicated, "the fact that she's a social worker from East Garfield Park would have been reason enough for us to think that" she would be adverse to the prosecution. Madelyn B. had further revealed during voir dire that she had been convicted of attempted robbery in the early 1960s and criminal trespass in the 1970s, although the State was not in possession of a criminal history indicating that she had any criminal convictions. Madelyn B. also used the phrase "substance abuse" in referencing her trespass conviction, but she did not elaborate.

         ¶ 16 During the in-chambers discussion regarding Madelyn B., respondent's counsel questioned the State's consistency in striking potential jurors with criminal backgrounds, citing the State's acceptance of Matthew H., a white juror who had been convicted of inciting a riot at Michigan State University. The conviction was later expunged. The State characterized the comparison as "laughable, " and without further explanation from the State, the court engaged in its own comparison of Madelyn B. and Matthew H.:

"THE COURT: Time out. Something happened at Michigan State where he was arrested for mob action. Again you're talking ...

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