¶1dissenting:
¶2Defendant is entitled to a new trial under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, as the result of the State’s decision to exclude Marie Shorter from the jury. The record shows that fewer than a third of the venirepersons were of the same race as defendant (African-American), yet half of the State’s peremptory challenges were exercised against persons of African-American descent. Marie Shorter was one of those persons. As the majority points out, Shorter was excluded from the venire even though she shared characteristics, unrelated to race, which were common to 5 of the 12 seated jurors and one alternate juror.
¶3At trial, there was no dispute as to whether defendant could establish a prima facie case of purposeful racial discrimination under Batson. Rather, the State proceeded directly to the next step in the Batson process, namely, to advance race-neutral explanations for the peremptory challenges it had made. In the case of Shorter, the State claimed that it had struck her from the venire only because she worked for the same company as Deborah Sepulveda, one of the five victims. The existence of a common employer was pertinent, according to the State, because the prosecution did not want to have a juror "who might be familiar with Debbie Sepulveda in a negative manner, thereby tainting the jury and preventing a fair trial.”
¶4On its face, this explanation has nothing to do with Shorter’s race. To this extent, the majority is quite correct that the State was able to proffer a race-neutral reason for Shorter’s exclusion. Where the majority goes awry is in treating this as the end of the inquiry. Contrary to what the majority may believe, the mere assertion of a facially neutral reason for striking a juror cannot be sufficient to defeat a Batson challenge. If it were, the protections of Batson would be illusory, for facially neutral reasons are an easy thing for prosecutors to generate. (See Batson, 476 U.S. at 106, 90 L. Ed. 2d at 94, 106 S. Ct. at 1728 (Marshall, J., concurring).) To avoid this problem, the law makes clear that once a facially neutral explanation is proffered, the court still has a duty to consider the explanation and determine if the defendant has established purposeful discrimination. People v. Andrews (1993), 155 Ill. 2d 286, 293.
¶5On such a review, the prosecutor’s explanation must demonstrate that the excluded venire members exhibited a specific bias related to the particular case to be tried. (Andrews, 155 Ill. 2d at 293.) Moreover, the explanation must be legitimate (Batson, 476 U.S. at 98 nn. 20 & 22, 90 L. Ed. 2d at 88, 89 nn. 20 & 22, 106 S. Ct. at 1724 nn. 20 & 22) and not pretextual or contrived (see People v. Gaston (1993), 256 Ill. App. 3d 621, 624; People v. Cannon (1992), 227 Ill. App. 3d 551, 554; People v. Lovelady (1991), 221 Ill. App. 3d 829, 839).
¶6The explanation offered by the State here does not meet this standard. As a preliminary matter, there is nothing in the record to substantiate the prosecution’s claim that Shorter and the victim Sepulveda worked for the same employer. To the contrary, the evidence adduced at trial suggests that Sepulveda worked for someone completely different. Even if the two women had worked for the same employer, however, the prosecution’s professed concern over possible negative feelings about Sepulveda is belied by the fact that it made absolutely no inquiry into whether Shorter actually had any connection with her. The employer in question is a major United States corporation, and the prosecution made no attempt to ascertain whether Shorter worked in the same place as Sepulveda, knew her, or had even ever heard of her.
¶7In addition, there is nothing to indicate why any familiarity, if it existed, might have left Shorter with negative feelings about Sepulveda. Sepulveda could well have been an exemplary co-worker with a positive reputation. During voir dire, the prosecution had no reason for assuming otherwise. The record shows simply that Sepulveda was Hispanic and that Shorter was African-American. The only way the prosecution could surmise the existence of ill feelings based on this limited information is by assuming that there is some inevitable hostility among co-workers of different races. This, however, is precisely the sort of racial stereotyping the law prohibits.
¶8For the foregoing reasons, the fear of jury taint through negative familiarity had no legitimate basis, and the prosecutor’s reasoning must be regarded as pretextual. (See Gaston, 256 Ill. App. 3d at 624.) The circuit court’s decision to uphold the exclusion of Shorter against defendant’s Batson challenge is therefore clearly erroneous, and the judgment must be reversed and the cause remanded for a new trial. Accordingly, I dissent.
¶9JUSTICE FREEMAN joins in this dissent.