In the
United States Court of Appeals
For the Seventh Circuit
Nos. 05-2007, 05-2008 & 09-1291
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S TYLES T AYLOR and K EON T HOMAS,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 01-CR-73—Charles R. Norgle, Sr., Judge.
A RGUED A PRIL 27, 2010—D ECIDED M ARCH 9, 2011
Before R OVNER, W ILLIAMS, and SYKES, Circuit Judges.
S YKES, Circuit Judge. This case returns to us again on
the issue of the prosecutor’s use of a peremptory strike
against an African-American member of the jury pool.
Styles Taylor and Keon Thomas, both African-American,
were convicted of robbing and murdering the owner of
a gun store in Hammond, Indiana. See 18 U.S.C. §§ 924(c)
& (j), 1951. The victim was white. During jury selec-
tion, the defendants challenged the government’s use
2 Nos. 05-2007, 05-2008 & 09-1291
of peremptory strikes against several African-American
jurors. See Batson v. Kentucky, 476 U.S. 79 (1986). The
district court denied the Batson challenges, accepting the
government’s proferred nonracial reason for the strikes.
Twice we have remanded the case to the district court
for further explanation of whether the prosecutor’s
stated reason was credible with respect to one juror in
particular. See United States v. Taylor, 509 F.3d 839, 841
(7th Cir. 2007) (“Taylor I”); United States v. Taylor,
277 F. App’x 610, 612-13 (7th Cir. 2008) (“Taylor II”).
After our second remand, the district court held an
evidentiary hearing and issued a lengthy decision
again crediting the prosecutor’s explanation for the
strike, which had expanded to include multiple new
nonracial justifications. The defendants contend in this
latest appeal that the scope of the inquiry on remand
should have been limited to explaining the original reason
offered during voir dire, not adding new ones. We
agree. The Supreme Court held in Miller-El v. Dretke, 545
U.S. 231, 252 (2005) (“Miller-El II”), that the validity of a
strike challenged under Batson must “stand or fall” on
the plausibility of the explanation given for it at the
time, not new post hoc justifications. Because it is not
possible to separate the permissible from the impermis-
sible support for the court’s Batson determination, we
must vacate and remand for retrial.
I. Background
In 2004 Taylor and Thomas were tried on charges of
murder and armed robbery for their involvement in the
Nos. 05-2007, 05-2008 & 09-1291 3
fatal shooting of the elderly owner of a gun store in
Hammond. The government was seeking the death
penalty for both defendants, although it was not clear
who actually was the shooter. During jury selection, the
prosecutor used peremptory strikes to exclude five
African-American members of the jury pool. The strike
at issue here involved an African-American juror
named Heshla Watson. During voir dire, the prosecutor
asked Watson whether she would be able to impose the
death penalty on a non-shooter. Watson replied that
she would not be able to impose the death penalty on
a non-shooter, and she repeated that response when
the question was asked again. Defense counsel then
asked Watson if she could follow the law; she replied
that she would follow the law as instructed and would
take into account all the factors she was instructed to
consider. The prosecutor moved to strike Watson for
cause based on her reservations about imposing the
death penalty on a non-shooter. The district court denied
this motion. The prosecutor then used a peremptory
strike to remove her from the venire.
Jamie Golliday was the next potential juror, and she
is also African-American. After the prosecutor used a
peremptory strike against her, defense counsel raised a
challenge under Batson to the removal of both Golliday
and Watson. Taylor I, 509 F.3d at 843. When asked for
a race-neutral explanation for striking Golliday, the
prosecutor cited her reluctance to impose the death
penalty and her doubts about being able to follow the
law. The prosecutor then offered his reason for striking
Watson: “And for the record, the juror before her, Heshla
4 Nos. 05-2007, 05-2008 & 09-1291
Watson, I believe she was a black—or African American
female. She came flat out and said she would not impose
a death penalty on the non-shooter.” Defense counsel
maintained that this explanation was pretextual, arguing
that Golliday’s and Watson’s reservations regarding
the death penalty were no stronger than any other
juror’s and that Watson had responded, just like other
jurors, that she would consider a non-shooter’s level
of participation in determining whether to impose the
death penalty. The court denied the Batson challenge,
but in an apparent oversight did not make any findings
regarding the prosecutor’s use of a peremptory strike
against Watson. Id. The defendants were convicted after
a lengthy trial on the guilt phase of the case. At the end
of Taylor’s penalty phase, the jury recommended life
imprisonment. Based on that recommendation, the gov-
ernment withdrew its request for the death penalty as
to Thomas, and the court sentenced both defendants to life.
On appeal we affirmed the judgment in most respects
but ordered a limited remand for the district court to
supplement the record with its rationale for rejecting
the Batson challenge to the government’s use of a peremp-
tory strike to remove Watson from the jury pool. Id. at
841, 851. Based on the voir dire record, we could
“discern no material difference between Watson and
[a certain white juror] with respect to their views on the
non-shooter issue—the sole reason the government sup-
plied for its use of a peremptory strike against Wat-
son.” Id. at 844. On remand the district judge explained
that the prosecutor’s rationale for the strike—that
Watson categorically rejected the death penalty for a
non-shooter— appeared to be credible.
Nos. 05-2007, 05-2008 & 09-1291 5
On appeal a second time, we remanded again, specifi-
cally identifying a missing link in the district court’s
decision: The court had “provide[d] no credibility deter-
mination as to the critical issue, which is why the pros-
ecutor would excuse an African-American potential
juror based on the answers to the non-shooter question,
but would not excuse a similarly-situated white juror
for that same reason.” Taylor II, 277 F. App’x at 612. We
noted the “unusual circumstances” of the case—that the
government had not given its rationale for the strike
until after the second of two consecutive peremptory
strikes against African-American jurors—and noted that
the district court “did not [initially] focus on Watson.” Id.
We explained that an evidentiary hearing was required
so that the court could question the prosecutor about
his motivation for the strike:
[I]t is apparent that further questioning [of the gov-
ernment as to Watson] is necessary here where
its “race-neutral” reason for the peremptory chal-
lenge applied equally to a white juror not excluded.
It is apparent that an evidentiary hearing is needed
for the court to properly develop the record and
address this Batson challenge. That will allow the
court to question the prosecutor as to why the gov-
ernment eliminated Watson based on the non-shooter
question but chose not to challenge similarly-
situated white jurors.
Id. at 612-13.
At the hearing the government took the opportunity
to expand on its rationale for striking Watson,
6 Nos. 05-2007, 05-2008 & 09-1291
advancing seven new reasons beyond her response
during voir dire to the non-shooter question. The seven
new reasons were: (1) Watson’s answers on her juror
questionnaire showed that she was reluctant to impose
the death penalty; (2) other responses to questions
during voir dire also suggested that she disfavored the
death penalty; (3) she would not identify as closely with
the victim, who had served in the military, as would
other jurors who had military experience or family mem-
bers in the military; (4) she likely would not side with
the government because her niece and nephew were
former police officers who had left their positions after
only a year of service; (5) she favored looser gun
control; (6) she was less likely to believe testimony from
an accomplice; and (7) she had not discussed how she
would weigh different circumstances in a defendant’s
upbringing when considering whether the death
penalty should be imposed.
In a 34-page opinion, the district court again credited
the government’s nonracial reasons for striking Watson.
The court accepted the prosecutor’s expanded explana-
tion that the strike was based on a comparison of
Watson’s answers to the death-penalty questions on
the juror questionnaire to those of three other jurors
who are not African-American—Lilian Nowak, Robert
Evans, and Kimberly Wills. The prosecutor reasoned
that the juror questionnaires and other voir dire
responses suggested that Watson would be less likely to
favor the death penalty than either Nowak or Evans. The
prosecutor also explained that based on the juror ques-
tionnaires and responses given during voir dire, Watson
would be less likely than Wills to either follow the law
Nos. 05-2007, 05-2008 & 09-1291 7
or impose the death penalty. The court also considered
some of the prosecutor’s additional justifications for
the strike: (1) that Watson approved of felons possessing
guns so long as they had permits, while Wills favored
stricter gun control; and (2) that Watson had not
discussed how she would weigh a defendant’s back-
ground, while Wills specifically said she would not
consider a defendant’s difficult upbringing when
deciding whether to impose the death penalty. All these
explanations, the court found, were credible nonracial
reasons for differentiating between the jurors, and so the
prosecutor’s use of a peremptory strike against Watson
was not racially motivated.
II. Analysis
The use of a peremptory strike to remove a potential
juror solely because of his or her race violates the Equal
Protection Clause. Batson, 476 U.S. at 91; United States v.
Willis, 523 F.3d 762, 766 (7th Cir. 2008). The familiar
Batson analysis proceeds in three steps: (1) the defendant
makes a prima facie case of discrimination; (2) the gov-
ernment provides a race-neutral explanation for the
peremptory strike; and (3) the court decides whether the
defendant has established that the government’s stated
reason is pretext for discrimination. Batson, 476 U.S. at 94-
98; Bennett v. Gaetz, 592 F.3d 786, 791 (7th Cir. 2010).
The focus of this case has been on Batson’s third
step—more specifically, the credibility of the prosecutor’s
race-neutral explanation for striking prospective juror
Watson. Miller-El v. Cockrell, 537 U.S. 322, 338-39 (2003).
8 Nos. 05-2007, 05-2008 & 09-1291
This required the trial court to assess the credibility or
honesty of the prosecutor’s race-neutral rationale. Lamon
v. Boatwright, 467 F.3d 1097, 1101-02 (7th Cir. 2006). “If
a prosecutor’s proffered reason for striking a black
panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve, that is evidence
tending to prove purposeful discrimination to be con-
sidered at Batson’s third step.” Miller-El II, 545 U.S. at
241. We review for clear error; to reverse we must have
a “firm and definite conviction that a mistake was
made.” Taylor I, 509 F.3d at 843; United States v. Hendrix,
509 F.3d 362, 370 (2007).
The defendants argue that the district court erred by
considering the additional, new reasons the prosecutor
offered at the evidentiary hearing conducted on the
second remand. They maintain this was impermissible
bolstering, and if the court had limited its inquiry
on remand to the reason originally offered at voir
dire—Watson’s answer to the non-shooter question—
then pretext has been established.
In Miller-El II the Supreme Court considered whether
a trial court must confine itself to the initial reasons
offered in support of a peremptory strike when a Batson
challenge is first raised. There, during voir dire, the
government had originally defended its use of a strike
against a black juror based on the juror’s views about
the death penalty and rehabilitation. Miller-El II, 545
U.S. at 243. But after the defense showed that this
reason was based on a misdescription of the juror’s testi-
mony, the prosecutor came up with a different reason
for the strike; the district court found the new reason
Nos. 05-2007, 05-2008 & 09-1291 9
credible, and the Fifth Circuit affirmed. Id. at 237, 245-46.
The Supreme Court noted the “pretextual timing” of the
prosecutor’s second reason and said it “would be dif-
ficult to credit the State’s new explanation, which reeks
of afterthought.” Id. at 246. The Court held that “a pros-
ecutor simply has got to state his reasons as best he can
and stand or fall on the plausibility of the reasons he
gives.” Id. at 252. Accordingly, Miller-El II instructs that
when ruling on a Batson challenge, the trial court should
consider only the reasons initially given to support the
challenged strike, not additional reasons offered after
the fact. Id. at 246-52; see also Holloway v. Horn, 355 F.3d
707, 725 (3d Cir. 2004) (noting that “where a prosecutor
makes his explanation for a strike a matter of record, our
review is focused solely upon the reasons given”); Turner
v. Marshall, 121 F.3d 1248, 1253 (9th Cir. 1997) (giving
no weight to reasons offered by the prosecution after
Batson hearing because they were not part of the pros-
ecutor’s explanation at the hearing).
In this case, when the Batson challenge was made, the
only reason offered by the prosecutor to justify striking
Watson was her response to the non-shooter question.
As such, on remand the court should have limited its
inquiry and analysis to exploring that very question. But
the remand hearing went much further. The govern-
ment compared Watson to jurors Nowak, Evans, and
Wills against the backdrop of seven new reasons
unrelated to the jurors’ willingness to impose the death
penalty on a non-shooter. And the district court factored
several of these new reasons into its analysis. For
instance, the court accepted the government’s explanation
for striking Watson while keeping Nowak and Evans in
10 Nos. 05-2007, 05-2008 & 09-1291
the pool by closely examining the written responses of
all three jurors to death-penalty questions on their juror
questionnaires. But at the time the Batson challenge was
made, the prosecutor did not say a word about striking
Watson because of her answers on her juror question-
naire. Similarly, in crediting the government’s explana-
tion for striking Watson but not Wills, the court looked
beyond their responses to the non-shooter question
and analyzed their attitudes toward gun control and how
they might evaluate the defendants’ backgrounds when
deciding whether to recommend the death penalty. But
when the Batson challenge was made, the prosecutor
never tried to justify striking Watson based on her views
of either of these issues.
Accepting new, unrelated reasons extending well
beyond the prosecutor’s original justification for
striking Watson amounts to clear error under the teaching
of Miller-El II, and the government’s reliance on these
additional reasons raises the specter of pretext. Our
decision in Hendrix is not to the contrary; in that case, the
“add on” race-neutral reasons were offered at the time
of the initial Batson challenge, not after the fact. Hendrix,
509 F.3d at 367. That’s obviously not the case here.
It’s not possible to parse the district court’s decision,
separating the permissible from the impermissible
reasons supporting the court’s credibility finding. Ac-
cordingly, we must vacate the judgments and remand
for a new trial.
V ACATED and R EMANDED.
3-9-11