american and they also they could be fair and impartial during the jury selection and i can talk about the native american first he's identified in the record as german one o seven and he told the court you're in a native american studies program and that he had a specific experience with the university of illinois police but he did describe as negative and that he expressed a concern about evaluating that specific officers on testimony fairly and then the state offered during the batson proceedings that jury one hundred seven had multiple negative experiences with long horsemen and that he was concerned about the friends he had in law enforcement and the routes was with convictions and he told the court he worked in engineering services at karl and he disclosed a prior misdemeanor conviction that occurred in the year two thousand press me fourteen years prior to this trial and that it occurred outside of the champagne urbana area and he referred to that as a negative experience with law enforcement and then he also talked about a traffic stop in the champagne community and happened in two years prior during batson proceedings the state offered that  i was inconsistent that his answers were car about the prior misdemeanor were varied about the timing and that he had his he didn't disclose that he received a jail sentence on the traffic driving license undisclosed criminal convictions but admitted it in after about those he hadn't gotten that far in his questioning so what happened here is the trial for eric at the third step third stage of bats and because vance answered the wrong discrimination and we have guidance from miller l two which gives us plenty of pretext for discrimination that the trial court here did not consider first there's the failure to ask engage in a meaningful work i or this press here admitted he didn't follow up with one forty eight or ask him about these convictions that he had shown his background check but that the jury didn't disclose when asked he didn't foll suggests in the explanation the sham and a pretext for discrimination so we would argue here that the trial court and did not make take this into consideration additionally the prosecutor here miss characterizes the jurors own statement when he is explaining his justifications for the strikes with one of seven he says multiple negative experiences or juror one of seven was very clear there was one specific instance one specific officer and the press here turns this into and the jury says no fourteen so that is a blatant mischaracterization of the jurors testimony that has been used as justification to strike him from this jury i definitely the court could have engaged and should have engage comparative journalist says there were two white jurors numbers three and sixty seven who both this close criminal convictions the state didn't ask them any questions about those they were allowed to serve on the jury and yet the fact that drove one of seven has family members will convictions is concern and the fact that one forty eight has been under supposed convictions that he doesn't ask them about that's just speculation and the fact that he has your question yes or is there a difference between juergen this or is th of police did six or seven years ago he doesn't ask him about these supposed convictions the prosecutor tells the court you know i have access to background so i think that we have to infer here and some background checks that information is not put on the record it's not shared with defense counsel as far as we can tell and he doesn't confronted her with it in any way to confirm that he does actually have convictions and that he failed to disclose so we here we have this  reasons and that the court says i find these to be honester mentoring motion denied so i'm sorry short answer is no so in addition to the comparative juror analysis the prosecutor gets confused about the two black jurors about one forty eight ninety nine when he's offering these reasons he misses them up and i think that's further evidence pretext and you know perhaps implicit bias or discrimination that this prosecutor exhibited that the trial court doesn't consider and then lastly the trial court could consider that the state's very criteria negative experience with conflict criminal convictions they have a disparate impact on the minority population and our very own legislature has a study commission that that knows in general from all convictions and negative experiences with law enforcement disproportionately occur minority communities the jury selection this case is further evidence of this because we're looking at a panel of twenty thirty people who have three minorities the only three that ever had a bad experience with police are all minority so in conclusion the trial court error when he accepted views justifications that there face value without completing the third step analysis and examine all the relevant factors here the ones that we've talked about today characterization of what the jurors actually said that is clear evidence of pretexts and this part there's no evidence the court considered that and then for the disparate impact itself of the criteria jurors we would ask this court to disregard the state's oppose arguments there based on an accurate reading of the record and the state alleges that all three jurors had a negative experience with their band of the record clearly shows only one forty eight mentioned an interaction with a band of if there are no further questions for me on that fascinates you would ask this court to reverse this conviction to remand him for a new trial so he can have a trial afforded by the constitution without the taint of racial discrimination and history select first one who addressed defense counsel's reply brief where she states the state's arguments are predicated on a distorted and incorrect reading of the record but two of the street three structure of do not even have an experience with their being a police that is with the prosecutor's question that wouldn't have been here in this community during ninety nine says no the it's citation and there what happens in the transcript is directly after that journey ninety nine mentions his urbana misdemeanor from two years ago jersey one forty eight there's no dispute he had a negative experience with urbana law enforcement and jersey one of seven cited directly above this they're asking the whole panel have either  ever had a negative experience with law enforcement or one of seven says yes i have would that be here in this community answer yes so all three of them have experience with their van a law enforcement this was you know by police however he clearly stated on the record that this was in this community it was a different police department however it was an urbana community so the state rejects the characterization in the reply brief first about the standard of review it's judge in the batson hearing as it was during the border proceedings here the judge was the same more importantly the judge specifically stated on the record here that it's observations that these were nondiscriminatory  challenges was based on his observation of the whole party or proceeding as well as the prosecutor's behavior or demeanor or credibility in his race neutral explanations that's important as the u s supreme court and hernandez stated most of the time that's all you have to go on is whether the prosecutor's excuse or explanation should be belief of a state that there are some would be much evidence bearing on that issue in the best evidence os often will be the demeanor of the attorney correct or size of the challenge here the trial court was obviously in the superior position to evaluate the prosecutor's credibility in these explanations he found these that the prosecutors explanation was valid and that these were nondiscriminatory peremptory challenges that was a the right decision but more importantly it should show that you know on review the trial court's evaluations of credibility should be given great deference moving on to the merits the prosecutor asked every single potential juror the same question have you had a negative experience with law enforcement the only three this suggests that they had a negative experience where the three in the subject  jurors ninety nine one zero seven and one forty eight that right there should in the analysis this is a completely race neutral reason to exclude these jurors especially when as in this case the two primary witnesses are law enforcement officers any hand or vague suggestion that somebody might not treat their testimony fair and partially or so that somebody might not believe them because of their occupation as police officers why would a prosecutor ever take the chance of having these members have having these people as members of the jury right there is a completely valid and i would say good race neutral reason to excuse these three jurors there was more support for that juror one hundred seven he was the native american so that he had numerous family members charges of serious crimes and that he specifically with that i have trouble believing the testimony of at least the university of illinois police officers if they were to testify in this case again why would a prosecutor ever take a chance on a witness around a potential juror says that juror ninety nine was  change shows he was not forthright about his more recent misdemeanor he brings up the fourteen year old misdemeanor and initially when asked the prosecutor sort of asked to go to him into talking about the abana misdemeanor from two years ago and still when he when he brings up that he says yes i that what i was convicted of that or yes i paid the fine he was actually since to jail for that he said i paid the fine twice never mentioning jail from a pro prosecutor perspective that even have to sort of were reminded this jury that he was convicted of a misdemeanor in this city two years ago on top of the explains his punishment or volunteers as punishment as paying the fine from prosecutor perspective this is either minimizing or discounting the seriousness of his conviction that on top of having a negative experience with law enforcement what's clearly a race neutral multiple race neutral explanations for excus and finally jersey one forty eight was asked by the trial court do you have any prior convictions he flat out lied and said no he had prior convictions for domestic battery drug possession and driving while suspended defense counsel states the prosecutor failed to follow up on these questions prosecutor was obligated to follow up on these questions the guy lied he used a peremptory challenge on him especially after he says that there was a a experience with law enforcer or s quote didn't agree with whether he says it's a negative or he didn't agree with that that the point is still the same he felt that the law enforcement community treated him wrong at some point in the past at any rate when the two primary witnesses are a band of police officers and these three all suggest that they had a negative experience in the past no prosecutor would ever take a chance on these three and ask for the minority communities getting a disparate impact as far as a negative law enforcement experience to take that suggestion to its full conclusion that would be meaning that prosecutors can no longer ask whether someone has a negative experience with law enforcement which is ridiculous when the primary witnesses in the case are in fact law enforcement we they want to ensure that a panel that can be fair and impartial towards the primary witnesses of a case like this one and clearly the prosecutors striking these jurors was not race related more importantly the trial court's decision that this wasn't race related was not against the manifest weight of the evidence and was not clearly erroneous may be favorable another never comes down to a single criteria here the obvious the obvious striking difference is that these although had been prior convictions they apparently agreed that the the experience with law enforcement was not negative because they didn't say anything when the prosecutor asked them that question so the trial court's decision that these were race neutral was not against the manifest weight of the evidence and if there are no more questions on that issue of mr for just briefly i wanted to take the opportunity in this case and ironically it's probably the ideal panel to express the the state's attorney's position with regard to castleberry in these cases  has missed in the nichols outlined given that this case is sort of in my view the opening salvo in these types of cases following castleberry i thought it was important to come here and make sure that  a page and i think that we are i i would describe these types of cases where for example you have the clerk improperly imposing a fine which is part of a sentence which is separate from a  renders a sentence void in the way that that we used to talk about it i think it's probably better described stealing a phrase from our crawford analysis to describe it as a sentencing non of that when a circuit clerk for example imposes a fine in my mind it's really no different than in the rare case where we see someone from d o c a bureaucrat there imposing a three hundred dollar fine line here from our perspective is that in a case like this where the clerk improperly imposes the fine there it is no necessity for a casselberry now says because forfeiture doesn't apply and the public policy underlying that is is fairly self evident based on what happens at the trial level because in most in many of these cases what happens is the defendant could never preserve this type of thing because the court would do what it sometimes does is mark on the thousand dollars in fines ships it down maybe two or three days later the defendant files a motion to reconsider sentence but the court hasn't even imposed those fines yet so if we were to presupposed the castleberry applied to the situation it wouldn't be helpful as a public policy matter because in fact most of these defendants couldn't preserve it if they wanted to but again i go back to my original point it's not part of imposed on the defendant i think that would be a violation of due process quite frankly so i think this really comports in in sort of an odd way with what justice connect wrote in warren and in the in the partial dissents has an ingredient that justice appleton wrote about and i know just as pope has done a lot of work on these fines and fees issues to where when i first started looking at these and fees issues i think i was about six foot four and now i'm five eight on a good day but the bottom line is we are the state's position when this when the trial judge who is the proper sentencing authority imposes the wrong fine then we believe because that's part of the sentence the castleberry applies in a case like this as i said before i think it's best described stealing a phrase from the crawford line of cases it's a sentencing non t we should utterly ignore it and in a case like this i think the supreme court would be just fine with this court sending it back as this court has been doing in cases to allow the circuit judge who is the court o jurisdiction to go in and fix whatever should be fixed in this case the only problem from the state's perspective that the supreme court had in casselberry was that because the appellate court doesn't have supervisory authority it can't in the aggregate increase the defendant sentence on appeal in fact of the state wanted to do that we would have filing mandamus petition i think that road has to be travel both ways for the defendant and the should not of which that should not have been imposed on the on the defendant the defendant would have to preserve that issue and then plainer analysis would have to be undertaken on review or i think that then that kind of cases montgomery ala years and so forth would would then kick in ultimately it in the outlying case where he had say a thousand dollars worth of fines imposed and five hundred dollars of those fines were improperly imposed but there were three hundred dollars of other find sort of outstanding my reading of casselberry and our position at the whole prosecutor's office is that this court could impose the proper fines because the ultimate amount of fines imposed in that case would be eight hundred dollars which would be two hundred dollars lower than the the aggregate  findings that do appear in the record at the same time arguing that this record is deficient in that regard regarding the state's argument that this was urbana please i think that it's impractical to  question that you know comes of more dire will you give more weight to this offer to this witness because it's a police officer if you answer yes they're probably going to strike you as well because just because your piece of shit doesn't mean you're more credible than anybody else and experiences and even got to explore that i think it's also important to look at the procedure the trial court followed the prosecutor when one forty eight said yeah i was urbana police he said well then i have to excuse you there was no opportunity for take that into consideration as well additionally i think that the the state makes several unfair leaps in the talk about journal united one forty eight happen to be goaded or flat out lying that's not what the record shows and you have a prosecutor offering some background information that he alone has that is not on the record other than his his justification and we don't have a judge saying i find it credible that he believe