In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2734
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY R UTLEDGE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 09 CR-49-LJM-KPF-1—Larry J. McKinney, Judge.
A RGUED JANUARY 14, 2011— D ECIDED A UGUST 8, 2011
Before B AUER, W OOD , and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. At the jury selection preceding
Anthony Rutledge’s criminal trial, the prosecutor used
peremptory challenges to strike the only two African-
American members in the venire. Suspecting that these
actions violated the Equal Protection Clause, Rutledge’s
attorney objected to the strikes using the three-step pro-
cedure established in Batson v. Kentucky, 476 U.S. 79 (1986).
This appeal focuses solely on Batson’s third step, which
requires the district court to make a finding of fact re-
2 No. 10-2734
garding the prosecutor’s credibility after the prosecutor
has offered a race-neutral reason for the strike (step two).
Here, the district court denied Rutledge’s Batson chal-
lenge after saying that the government’s reasons were
“nonracial,” but without making any finding on the prose-
cutor’s credibility. As we have recently emphasized,
“we cannot presume that the prosecutor’s race-neutral
justification was credible simply because the district
judge ultimately denied the challenge.” United States v.
McMath, 559 F.3d 657, 666 (7th Cir. 2009). The district
court must make an independent credibility determina-
tion at step three. Because we cannot find the neces-
sary credibility finding in this record, we are unable at
this stage to make an informed decision about the
court’s decision to deny the Batson challenge. We
therefore remand the case to the district court so that it
can fill this void.
I
During the voir dire before Rutledge’s trial, the judge
conducted a number of individual interviews of the
venirepersons. As we have noted, the group included
two African-American members, Mr. Powell and
Ms. Martin. When asked whether he had any questions
relating to his possible service on the jury, Powell re-
sponded as follows:
The only thing that I can think of is that only being
the other African American in this courtroom,
would my views be overruled, seeing that they will
No. 10-2734 3
think I’m taking his [the defendant’s] point on some-
thing?
The district judge replied that “there’s no room for
taking race into account at all,” and Powell immediately
said, in response to the court’s direct question, that
he could be a fair and impartial juror. The voir dire
record reveals even less with respect to Martin. She was
a business insurance processor; she handled endorse-
ments for auto insurance; and she enjoyed her work.
She had no questions for the court, and she affirmed
that there was no reason why she could not be a fair
and impartial juror. At the conclusion of the interviews,
however, the government struck Powell and Martin,
which prompted defense counsel’s Batson challenge.
In response, this exchange followed:
[THE PROSECUTOR]: First, I would state myself
that I am African American, for the record; and my
basis for striking Mr. Powell is his statement
indicating that because he is an African American
male, if he was to side with the defendant, if other
jurors would listen to him.
I believe that this statement demonstrates a level
of going against his credibility and also his bias
toward the defendant without hearing any evidence
at this point.
THE COURT: What about [Ms. Martin]?
[THE PROSECUTOR]: Your Honor, for [Ms. Martin],
during the voir dire, [Ms. Martin] appeared agitated
and also frustrated during voir dire.
4 No. 10-2734
THE COURT: Anything else you would like to say?
[DEFENSE COUNSEL]: Judge, I guess those are
racially neutral reasons. I didn’t see any hesitation or
agitation on the part of Ms. Martin. So it’s not a credi-
ble racially neutral reason.
With respect to Mr. Powell’s rationale, he simply
raised a legitimate personal question which didn’t in
any way reflect that he couldn’t be a fair juror. It was
just a concern that he had. So that’s not a legitimate
racially neutral reason for striking him.
THE COURT: I heard Mr. Powell say he was
worried about the respect he was going to get as a
juror. Is that a fair statement?
[DEFENSE COUNSEL]: I think so.
THE COURT: Is that what troubled you?
[THE PROSECUTOR]: What troubled me is he was
afraid the jurors would not listen to him if he were
to side for the defendant because they wouldn’t find
him credible because he is an African American male.
THE COURT: I think—I’m having a little trouble
with that. I think he’s given us his real thought about
respect that he might get from other jurors, and
I indicated to him that he is entitled to the respect
of other jurors I think without equivocation. Then
I think he said he was all right with it.
I guess your concern is—his concern was racial,
right?
[THE PROSECUTOR]: That’s my understanding,
Your Honor.
No. 10-2734 5
THE COURT: So your concern is racial?
[THE PROSECUTOR]: No, Your Honor. My concern
is whether or not this individual can be unbiased
in hearing both sides of the evidence before
rendering a judgment.
THE COURT: I think that does it then. Those are
both nonracial-related reasons. So I’m going to
excuse Mr. Powell.
The court did not say why it was also sustaining the
objection with respect to Martin. Once the challenges
were denied, the case moved to trial, where Rutledge
was convicted. This appeal followed.
II
The exclusion of even a single prospective juror on
account of race, ethnicity, or gender violates the Equal
Protection Clause. Snyder v. Louisiana, 552 U.S. 472,
478 (2008); Coulter v. McCann, 484 F.3d 459, 464 (7th Cir.
2007). To prove a violation under Batson, “once the oppo-
nent of a peremptory challenge has made out a prima
facie case of racial discrimination (step one), the burden
of production shifts to the proponent of the strike to
come forward with a race-neutral explanation (step two).
If a race-neutral explanation is tendered, the trial court
must then decide (step three) whether the opponent of
the strike has proved purposeful discrimination.” Purkett
v. Elem, 514 U.S. 765, 767 (1995) (per curiam).
At the third step, the “critical question” is the “persua-
siveness of the prosecutor’s justification for his per-
6 No. 10-2734
emptory strike,” which “comes down to whether the
trial court finds the prosecutor’s race-neutral explana-
tions to be credible.” Miller-El v. Cockrell, 537 U.S. 322,
338-39 (2003) (“Miller-El I”); see also Snyder, 552 U.S. at
477. Credibility determinations can be made in many
ways, and for that reason we treat the district court’s
findings at step three as findings of fact, reviewable
only for clear error. See Miller-El I, 537 U.S. at 339 (“Defer-
ence is necessary because a reviewing court, which ana-
lyzes only the transcripts from voir dire, is not as
well positioned as the trial court to make credibility
determinations.”); United States v. Taylor, 509 F.3d 839,
845 (7th Cir. 2007). That deference is heightened when
a litigant’s race-neutral reason for striking a prospec-
tive juror involves the juror’s demeanor; there is no way
for an appellate court to review this sort of intangible,
which appears nowhere on our “cold” transcript. Snyder,
552 U.S. at 477, 479; cf. Klockner, Inc. v. Federal Wire
Mill Corp., 663 F.2d 1370, 1375 (7th Cir. 1981).
Nevertheless, if there is nothing in the record reflecting
the trial court’s decision, then there is nothing to which
we can defer. See Snyder, 552 U.S. at 479; Taylor, 509 F.3d
at 845. That is why the third step under Batson “requires
the court to weigh the evidence and determine whether
the prosecution’s nondiscriminatory reason for the
strike is credible or if the defense has shown purposeful
discrimination.” McCann, 484 F.3d at 465 (emphasis
added); see also Miller-El v. Dretke, 545 U.S. 231, 251-52
(2005) (“Miller-El II”) (“Batson . . . requires the judge to
assess the plausibility of [the prosecution’s race-neutral]
reason in light of all evidence with a bearing on it.”).
No. 10-2734 7
Where the proffered race-neutral reason for a strike is
limited to the juror’s demeanor, “the trial court must
evaluate not only whether the prosecutor’s demeanor
belies a discriminatory intent, but also whether the
juror’s demeanor can credibly be said to have exhibited
the basis for the strike attributed to the juror by the prose-
cutor.” Snyder, 552 U.S. at 477.
The analytical structure established by Batson cannot
operate properly if the second and third steps are con-
flated. Purkett, 514 U.S. at 768. At the second step, nearly
any race-neutral reason will suffice, even those that are
arbitrary, irrational, or silly. See id.; McCann, 484 F.3d at
465. It is “not until the third step that the persuasiveness
of the justification becomes relevant,” and “implausible
or fantastic justifications may (and probably will) be
found to be pretexts for purposeful discrimination.”
Purkett, 514 U.S. at 768; see also Coulter v. Gilmore, 155
F.3d 912, 920 (7th Cir. 1998); cf. Johnson v. California, 545
U.S. 162, 171 (2005) (explaining that the first two steps
govern only the production of evidence later evaluated
at step three).
With these basics in mind, the parties have focused
primarily on the Supreme Court’s decision in Snyder
and our later decision in McMath. In Snyder, the Court
considered a Batson challenge that had been denied
after the prosecutor gave two reasons for the strike of a
prospective juror. 552 U.S. at 478. The first was his “ner-
vous” demeanor, and the second was his student
teaching obligations. The trial court denied the motion,
but did not say why. Id. at 479. Because the second
8 No. 10-2734
reason was suspicious, likely pretextual, and gave rise
to an inference of discrimination in light of the circum-
stances presented, the Court was left with only the
demeanor-based reason as a lawful justification for
striking the juror. Id. at 482-84. The trial judge never
made a determination on either the juror’s demeanor or
the prosecutor’s credibility before denying the Batson
challenge. Under those circumstances, the Court refused
to presume that the trial judge credited the demeanor-
based justification. Id. at 479. Given the fact that over a
decade had passed, which made a remand effectively
impossible, the Court reversed. Id. at 485-86.
In McMath, we reviewed a Batson challenge to a pros-
ecutor’s strike supported only by the prospective
juror’s demeanor. As in Snyder, the trial court made no
credibility determination with respect to this explana-
tion. In the face of this silence and the principle
expressed in Snyder, we refused to “presume that the
prosecutor’s race-neutral justification was credible
simply because the district judge ultimately denied the
challenge.” McMath, 559 F.3d at 666. As McMath recog-
nized, under Snyder “a summary denial does not allow
us to assume that the prosecution’s reason was
credible; rather the district court’s silence leaves a void
in the record that does not allow us to affirm the denial.”
Id.; see also Taylor, 509 F.3d at 845. In Taylor, the basis
for the peremptory challenge was not demeanor, but
the explanation was inadequate: just as here, the
district court failed to mention one juror even though it
rejected a Batson challenge to the strikes of two jurors. Id.
Because we “must find out what the district court per-
No. 10-2734 9
ceived before we can” resolve a Batson denial on appeal,
we remanded the case for further findings. Id. In other
words, when we confront an evidentiary gap at step
three, the ultimate Batson issue cannot be resolved
without a remand. See McMath, 559 F.3d at 666; Taylor,
509 F.3d at 845; cf. Coombs v. Diguglielmo, 616 F.3d 255, 262-
64 (3d Cir. 2010) (applying a similar rule).
Here too we conclude that a remand is necessary for
the district court to make explicit credibility findings
for both jurors. For Martin, this outcome is required by
McMath and Taylor. The prosecutor’s race-neutral
reason was that Martin “appeared agitated and also
frustrated” throughout voir dire. Defense counsel re-
sponded appropriately by conceding that the demeanor-
based reason was facially race-neutral, see McMath,
559 F.3d at 665; United States v. Hunter, 86 F.3d 679, 683
(7th Cir. 1996), while asserting that it was pretextual.
Disturbingly, in the colloquy that followed the dis-
trict court never once credited the demeanor-based
reason for the prosecutor’s peremptory strike. The court
merely repeated that the demeanor-based justifica-
tion was a “nonracial-related reason.” But everyone
already knew that this was true, as a facial matter; the
court never resolved the key questions. The trial court
“must evaluate not only whether the prosecutor’s de-
meanor belies a discriminatory intent, but also whether
the juror’s demeanor can credibly be said to have
exhibited the basis for the strike attributed to the juror
by the prosecutor.” Snyder, 552 U.S. at 477. These
findings must be explicit; without them there is a void
that stymies appellate review, gives us no finding of fact
10 No. 10-2734
to which we might defer, and ultimately precludes us
from affirming the denial of the Batson challenge.
McMath, 559 F.3d at 665-66; Taylor, 509 F.3d at 845.
Even without these problems, to credit this exchange
as an adequate finding at step three would be wrong
because it would conflate the second and third steps of
the Batson analysis: asking whether something is race-
neutral is analytically distinct from determining whether
the asserted reason is believable or pretextual. See
Purkett, 514 U.S. at 768; Johnson, 545 U.S. at 171; McCann,
484 F.3d at 465. All sorts of reasons would pass the
step two filter, including such trivial race-neutral criteria
as hair length, facial hair, tattoos, or piercings. See
McCann, 484 F.3d at 465 (citing Miller El-II, 545 U.S. at
267 (Breyer, J., concurring), and Purkett, 514 U.S. at 768).
Perhaps recognizing this, the government has strained
to find something in the record that would serve as
the necessary step three finding. But all it can say is that
the district court “made a factual determination that
the government’s justification was race-neutral.” As we
have already explained, this is not enough. At the end of
the day, the government’s argument is really that the
denial of a Batson challenge may serve as an implicit
finding that the prosecutor’s explanation was credible.
We rejected that argument in McMath, 559 F.3d at 666,
and do so again here.
This rule applies with equal force to the strike of
Powell. Though the prosecutor’s reason for striking
Powell was not his demeanor, there were still significant
unanswered credibility questions. Much of the conver-
No. 10-2734 11
sation between the prosecutor and the judge about
Powell focused on figuring out precisely what the race-
neutral reason for the strike was. The court’s first state-
ment indicated only that it understood that the pros-
ecutor’s purported reason for striking Powell was race-
neutral. Once again, step three requires more. After
Powell voiced his concern that he might be stereotyped
on the basis of his race, the court assured him that it
would make it clear that nothing like that would be
tolerated. Powell then answered “no” to the question “[i]s
there any reason why you couldn’t be a fair and
impartial juror . . . .” The court must have credited this
statement, or it would have been required to excuse
Powell for cause. Before permitting the prosecution to
use a peremptory strike on Powell, however, it was
still essential to make a finding on the third part of the
Batson inquiry. As we have said, the court’s statement
that the prosecutor’s reason for striking Mr. Powell
was “nonracially-related” did not do the job.
III
We must also address a potentially worrisome element
in the resolution of the Powell strike that we have not
yet mentioned. In an effort to convince the judge that
her race-neutral explanations were credible, the
prosecutor stated for the record that she is Afri-
can-American. The government later explained this
statement in its brief by asserting that the fact that the
stricken juror and the prosecutor were of the same race
was a factor the judge could consider in making the
12 No. 10-2734
credibility finding at step three of Batson. Because the
exchange between the prosecutor and the judge was so
brief here, we do not know exactly why the prosecutor
referred to her race, or what she intended the judge
to draw from that fact.
At step three, a judge may, and often must, engage in
a holistic evaluation of a prosecutor’s credibility and
motives. The abbreviated exchange on the record is
troubling, though, because it can be read as a request
by the government for the judge to assume that simply
because the prosecutor is herself African-American,
she would not engage in prohibited discrimination.
The Supreme Court has rejected any “conclusive pre-
sumption” that a member of a group will not discrim-
inate against other members of a group. Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)
(reversing summary judgment based on presumption
that members of the same gender cannot discriminate
against each other); Castaneda v. Partida, 430 U.S. 482, 499
(1977) (refusing to “presume as a matter of law that
human beings of one definable group will not dis-
criminate against other members of their group”); see
also Powers v. Ohio, 499 U.S. 400, 402 (1990) (holding
that the challenger of a peremptory challenge under
Batson may proceed “whether or not the defendant and
the excluded juror share the same race”). Batson itself
embodied the rejection of racial stereotypes. 476 U.S. at
89 (“[T]he Equal Protection Clause forbids the pros-
ecutor to challenge potential jurors solely on account
of their race or on the assumption that black jurors as
a group will be unable impartially to consider the
No. 10-2734 13
State’s case against a black defendant.”). Reliance on the
prosecutor’s race would also invite giving credence to
assumptions about race and discrimination that were
shown long ago to be false. See Castaneda, 430 U.S. at 503
(Marshall, J., concurring) (summarizing social science
research concluding that membership in a minority
group is not indicative of a person’s attitude towards
that group).
While a judge may consider a variety of factors in
making a credibility determination, it would be wrong
for a judge to assume that a prosecutor of the same race
as a juror would not engage in discrimination against
that juror simply because of their shared race. As the
Supreme Court explained in Powers, the Equal Protec-
tion Clause “mandate[s] that race discrimination be
eliminated from all official acts and proceedings of the
State,” which is “most compelling in the judicial system.”
499 U.S. at 415. To make the finding of fact about the
prosecutor’s credibility required at step three of Batson,
the district judge must make an individualized cred-
ibility determination based on the actual evidence
of the prosecutor’s demeanor and actions in the
courtroom, as well as any other information properly
before the court; the judge may not rely on stereotypical
assumptions based on race.
Finally, the government argues that Thaler v. Haynes,
130 S. Ct. 1171 (2010) (per curiam), abrogated Snyder
and, accordingly, our decision in McMath is no longer
good law. In our opinion, this misreads Thaler. Thaler
was a habeas corpus case challenging a state conviction.
14 No. 10-2734
The question before the Court was whether clearly estab-
lished Supreme Court precedents required a state judge
ruling on a Batson challenge to “reject a demeanor-
based explanation for the challenge unless the
judge personally observed and recalls the aspect of the
prospective juror’s demeanor on which the explanation
is based.” Id. at 1172. The answer to that question is no.
But the Court itself recognized in its opinion that
Snyder was distinguishable. See id. at 1174-75. The
question in Thaler plays no part in our case, nor for that
matter are we, in this direct federal criminal appeal,
restricted by the standards of review appropriate in
habeas corpus proceedings.
IV
The scope of the remand we are ordering is narrow.
The district court must make findings on the issues we
have identified. If the passage of time precludes the
district court from making such findings, or if it
finds that the prosecutor’s reasons are not credible,
it must vacate Rutledge’s conviction. See Snyder, 552 U.S.
at 485-86. The case is R EMANDED to the district court
for further proceedings consistent with this opinion.
8-8-11