where State challenges black veniremen for being inattentive, that rationale will be deemed pretextual unless the State's rationale is either an uncontested matter of fact made part of the record or is supported by observations made by the trial judge in the record
How later courts described this case
- where State challenges black veniremen for being inattentive, that rationale will be deemed pretextual unless the State's rationale is either an uncontested matter of fact made part of the record or is supported by observations made by the trial judge in the record
Written by the judges who cited it.
The opinion
HERSEY, Chief Judge,
dissenting.
For the reasons expressed in the dissent in Hill v. State, 547 So.2d 175 (Fla. 4th DCA 1989), and on the same basis, I respectfully dissent. Appellant has not met his burden at either level of inquiry. What *181 we do here, in effect, is leap the hurdle of the “likelihood” inquiry, examine the reasons given by the state for its challenge, find them less than convincing [usurping the trial court’s function in this regard] and use this conclusion to “bootstrap” the initial step in the process. This does not comport with my interpretation of either Neil, Slappy or Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).