In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-‐‑1980
MURRAY HOOPER,
Petitioner-‐‑Appellant,
v.
CHARLES L. RYAN, Director of the Arizona Department of
Corrections, and LISA MADIGAN, Attorney General of Illinois,
Respondents-‐‑Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 1809 — Joan B. Gottschall, Judge.
____________________
ARGUED JANUARY 14, 2013 — DECIDED SEPTEMBER 9, 2013
____________________
Before EASTERBROOK, Chief Judge, HAMILTON, Circuit
Judge, and MILLER, District Judge.†
EASTERBROOK, Chief Judge. After a trial in 1981, Murray
Hooper was convicted of three murders and sentenced to
death. The Supreme Court of Illinois affirmed the conviction
† Of the Northern District of Indiana, sitting by designation.
No. 12-‐‑1980 2
but ordered a new penalty trial. People v. Hooper, 133 Ill. 2d
469 (1989). It ended in another capital sentence, which was
affirmed. People v. Hooper, 172 Ill. 2d 64 (1996). Collateral re-‐‑
view in state court left the convictions in place, but the Gov-‐‑
ernor of Illinois commuted the sentence to life imprison-‐‑
ment. Federal collateral review began in 2010. The district
court’s order, 854 F. Supp. 2d 546 (N.D. Ill. 2012), denying
Hooper’s petition under 28 U.S.C. §2254, rejected all three of
his contentions. The unusual caption of these proceedings—
in which the lead respondent is the Director of the Arizona
Department of Corrections—stems from the fact that Hooper
is on death row in that state, following his convictions there
for multiple murders. See State v. Hooper, 145 Ariz. 548
(1985); Hooper v. Schriro, 2008 U.S. Dist. LEXIS 84760 (D. Ariz.
Oct. 10, 2008) (denying Hooper’s petition for relief under
§2254). Because relief remains possible on the Arizona con-‐‑
victions and sentence, however, Hooper’s challenge to his
Illinois convictions is justiciable.
Details about Hooper’s crimes do not matter to the feder-‐‑
al proceedings. Procedural details do matter. Hooper was
indicted with William Bracy and Roger Collins. Bracy and
Collins were tried and convicted together; Hooper was tried
separately. The convictions of Bracy and Collins reached the
Supreme Court of the United States because Judge Thomas J.
Maloney of the Circuit Court of Cook County presided.
Maloney was convicted of taking bribes, see United States v.
Maloney, 71 F.3d 645 (7th Cir. 1990), and one of the prosecu-‐‑
tions on which the bribery conviction rests came between the
Bracy–Collins trial and Hooper’s trial. Bracy and Collins
contended that Judge Maloney engaged in “compensatory
bias”—that he ensured the conviction of defendants who did
not pay bribes, both to make people more willing to pay his
3 No. 12-‐‑1980
price and to make his record look acceptable to the voters
when up for retention. The Supreme Court held that com-‐‑
pensatory bias is a valid legal theory and remanded for ex-‐‑
ploration of that subject. Bracy v. Gramley, 520 U.S. 899
(1997). Five years later, this circuit held that compensatory
bias had not been established with respect to Bracy’s and
Collins’s convictions. Bracy v. Schomig, 286 F.3d 406 (7th Cir.
2002) (en banc).
Hooper argues that he has shown compensatory bias
even though Bracy and Collins failed to do so. A state judge
rejected that argument in 2007. The state’s intermediate ap-‐‑
pellate court affirmed, and the Supreme Court of Illinois de-‐‑
nied a petition for review. The federal district judge held
that the state decision on the compensatory-‐‑bias subject is
not marred by a legal error or any clearly erroneous factual
finding. 854 F. Supp. 2d at 563–67. Given our holding en
banc in Bracy, we too conclude that the state judiciary’s deci-‐‑
sion on this subject cannot be upset on collateral review. We
also agree with the district court’s conclusion, id. at 574–76,
that Hooper has not provided an adequate reason to reject
the state courts’ denial of his contention that his confession
should have been excluded from evidence. Hooper’s third
argument, however, is substantially stronger.
Five years after Hooper’s trial, the Supreme Court held in
Batson v. Kentucky, 476 U.S. 79 (1986), that racial discrimina-‐‑
tion in jury selection could be shown not just by statistical
data revealing a systemic problem, see Swain v. Alabama, 380
U.S. 202 (1965), but by the misuse of peremptory challenges
in a single case. Batson applies to cases that were on direct
appeal when it was released. Griffith v. Kentucky, 479 U.S. 314
(1987). Because Hooper’s appeal was pending when Batson
No. 12-‐‑1980 4
came down, the Supreme Court of Illinois ordered Judge
Maloney to hold a hearing to determine whether the prose-‐‑
cutor had exercised peremptory challenges on racial
grounds. In 1987 Judge Maloney found not; the Supreme
Court of Illinois concluded in 1989 that his findings did not
constitute clear error, 133 Ill. 2d at 502–15; and 23 years later
the federal district court concluded (854 F. Supp. 2d at 567–
74) that the state’s decision is not “contrary to, or … an un-‐‑
reasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” (28
U.S.C. §2254(d)(1))—a standard established by legislation in
1996 and applicable here because the federal collateral attack
began in 2010. See Lindh v. Murphy, 521 U.S. 320 (1997).
A few numbers show why there is a Batson problem. The
venire drawn for Hooper’s trial had 63 members. Of these,
seven were black. Two of the seven were removed on chal-‐‑
lenges for cause. The prosecutor exercised peremptory chal-‐‑
lenges against the remaining five. The prosecutor used 11
peremptory challenges, removing 100% of the black mem-‐‑
bers of the venire who had not already been removed for
cause and 11% of the white or Asian members. Surprisingly,
however, Judge Maloney concluded that the defense lacked
even a prima facie demonstration of racial discrimination.
Here is his analysis of the Batson issue:
From the Court’s examination of all the available facts and
circumstances relevant to the selection of the jury in this
case, the Court does not detect or find evidence of a mind
to discriminate in the actions or statements of the State.
Nor does the Court find a pattern of strikes that would
give rise to an inference of discriminatory intent.
The Court does find that the reasons articulated by the
State during jury selection, for having exercised its chal-‐‑
5 No. 12-‐‑1980
lenges refute any inferences of a discriminatory intent.
Neutral, valid and logical reasons were stated as the predi-‐‑
cates upon which the challenges were based. Those expla-‐‑
nations were not required to rise to the level of a challenge
for cause.
The Court rules that the totality of the evidence does not
raise an inference that the State used its peremptory chal-‐‑
lenges to exclude blacks from the jury on the basis of race
and a prima facie case of purposeful discrimination is not
established.
See 133 Ill. 2d at 504. There are the findings that the Supreme
Court of Illinois held neither legally mistaken nor clearly er-‐‑
roneous. We think that, in reaching this conclusion, the Su-‐‑
preme Court of Illinois made at least four errors that were
unreasonable applications of the Supreme Court’s decisions,
if not outright contradictions of them.
Hooper’s principal argument to the state judiciary, and
his principal argument now, is that the numbers speak for
themselves. The prosecutor removed every black member of
the venire, producing an all-‐‑white jury. The Supreme Court
of Illinois held, however, that a judge is forbidden to infer a
prima facie case of discrimination from a racially dispropor-‐‑
tionate use of challenges. “Allowing the trial court to find a
prima facie case based solely on the fact that the State has
used its peremptory challenges to exclude all the black ju-‐‑
rors from the venire would negate consideration of all other
relevant circumstances … and would be inconsistent with
Batson’s mandate that all relevant circumstances be consid-‐‑
ered.” 133 Ill. 2d at 506. This conflicts with Batson, where the
Court remarked that “total or seriously disproportionate ex-‐‑
clusion of Negroes from jury venires … is itself such an ‘un-‐‑
equal application of the law … as to show intentional dis-‐‑
No. 12-‐‑1980 6
crimination’” (476 U.S. at 93, quoting from Washington v. Da-‐‑
vis, 426 U.S. 229, 241 (1976), and Akins v. Texas, 325 U.S. 398,
404 (1945)).
Under Batson’s predecessor, Swain v. Alabama, statistics
were the only way to show race discrimination in jury selec-‐‑
tion; nothing in the Court’s opinion suggests that it swung to
the other extreme by holding that statistics could not suffice
even for a prima facie demonstration. By relying on em-‐‑
ployment-‐‑discrimination cases such as Washington v. Davis,
the Court established in Batson that the usual means to show
discrimination, including statistical analysis, are available.
Later decisions, such as Miller-‐‑El v. Dretke, 545 U.S. 231
(2005), show that Batson was serious in its endorsement of
statistical methods. Miller-‐‑El holds that striking 91% of eligi-‐‑
ble black members of the venire established a prima facie
case of discrimination. The parties have debated whether,
under §2254(d)(1) and Teague v. Lane, 489 U.S. 288 (1989),
procedural elaborations on the Batson framework, such as
those in Miller-‐‑El and Hernandez v. New York, 500 U.S. 352
(1991), that were announced after the conclusion of Hooper’s
direct appeal, govern his situation. We need not resolve that
question as a general matter, because to the extent that Mil-‐‑
ler-‐‑El and other decisions elucidate Batson they are not “new
rules” for the purpose of Teague.
Some elaborations on the Batson framework do create
new rules. For example, the parties agree that J.E.B. v. Ala-‐‑
bama, 511 U.S. 127 (1994), which extends Batson from race
discrimination to sex discrimination, created a new rule that
does not aid Hooper, even though the prosecutor struck one
person for the stated reason of altering the jury’s male-‐‑to-‐‑
female ratio. Miller-‐‑El, by contrast, does not change anything
7 No. 12-‐‑1980
substantive about Batson. Instead it illustrates the proper ap-‐‑
plication of Batson’s approach. Miller-‐‑El was itself decided on
collateral review; the Justices did not see any problem in ap-‐‑
plying its understanding to a case in which direct review
had ended years earlier.
The Supreme Court of Illinois made a second legal error
when analyzing the data and concluding that they did not
offer any support for a prima facie case. The state court ob-‐‑
served that the prosecutor struck six white or Asian mem-‐‑
bers of the venire while using peremptory challenges against
five blacks. Because most of those struck with peremptory
challenges were not black, the state court concluded, it is un-‐‑
likely that race played a role. 133 Ill. 2d at 510. This reflects
confusion about how to use numbers. The right question is
whether it is possible to understand the pattern of strikes on
the hypothesis that race did not play a role. The denomina-‐‑
tor in such an analysis is the number of black and white per-‐‑
sons in the venire, not the number of peremptory challenges
exercised. We asked at oral argument whether anyone in ei-‐‑
ther the state or federal litigation had performed a statistical
analysis to determine whether, if 11 peremptory challenges
had been exercised without regard to race, all five eligible
black members of a 63-‐‑person venire would have been ex-‐‑
cused. No one hired a statistician to do the analysis. Our
back-‐‑of-‐‑the-‐‑envelope calculation suggests that the probabil-‐‑
ity is vanishingly small.
A third legal error comes on the same page of the state
court’s opinion. The court said that an inference of discrimi-‐‑
nation is undermined because Hooper, all three victims, and
all of the principal witnesses are black. As it happens, the
court was wrong on the facts; three of the principal witness-‐‑
No. 12-‐‑1980 8
es are white (as the state concedes). See 854 F. Supp. 2d at
571–72. But the main problem is legal rather than factual.
Batson and its successors say that the rule against race dis-‐‑
crimination in jury selection is designed to protect the inter-‐‑
ests of potential jurors and of the public at large, not just of
the litigants. The Supreme Court of Illinois seems to have
thought that using race in jury selection is tolerable as long
as the defendant, victims, and witnesses all are of the same
race. That’s a serious legal blunder.
Finally, the state court erred in concluding, as Judge
Maloney also had done, that a prima facie case can be de-‐‑
feated by a prosecutor’s seemingly race-‐‑neutral explanation
for the strikes. As Hernandez and other decisions show, and
Batson itself said (476 U.S. at 97–98), it is important to keep
the sequence of proof straight. Evidence that raises an infer-‐‑
ence of discrimination creates a prima facie case; this in turn
requires an explanation by the prosecutor and an evaluation
by the judge whether the prosecutor is honest in articulating
a non-‐‑racial reason for each challenge. To say “the prosecu-‐‑
tor gave a reason, therefore there is no prima facie case” is to
scramble the analysis in a way that potentially eliminates the
need to evaluate the prosecutor’s honesty. See Franklin v.
Sims, 538 F.3d 661, 666 (7th Cir. 2008). No harm is done if on
the way to saying “no prima facie case” the judge concludes
that the prosecutor honestly had a race-‐‑neutral reason for
each challenge, see United States v. Stephens, 421 F.3d 503, 516
(7th Cir. 2005)—once a hearing has been held and a decision
made on the ultimate issue, the whole structure of prima fa-‐‑
cie case and response can be discarded, see Postal Service v.
Aikens, 460 U.S. 711, 714–15 (1983)—but that did not occur
here. The prosecutor did not articulate any reason for one of
9 No. 12-‐‑1980
the strikes, and Judge Maloney did not evaluate the honesty
of the reasons stated for the other four.
We conclude that the Supreme Court of Illinois applied
Batson unreasonably to Hooper’s situation in concluding that
the evidence did not make out a prima facie case of race dis-‐‑
crimination in jury selection. And because the prosecutor
has not to this day articulated any reason for one of the five
challenges to black members of the venire, it is impossible to
sustain the state court’s decision on alternative grounds. A
single discriminatory peremptory challenge vitiates the
judgment. See Snyder v. Louisiana, 552 U.S. 472, 478 (2008). At
least one additional challenge is suspect. The prosecutor jus-‐‑
tified this challenge by saying that the jury had too many
women. We have explained why that confessed sex discrim-‐‑
ination does not justify collateral relief, but the reference to
the venire member’s sex led the state judiciary not to ask
why, of the many women still eligible to serve, the prosecu-‐‑
tor challenged the one who was by that point the only black
member of the venire. The prosecutor has never attempted
to justify striking this particular woman, and if the prosecu-‐‑
tor had chosen a woman at random the challenge most likely
would have fallen on a white member of the venire.
Our analysis does not establish that the prosecutor en-‐‑
gaged in racial discrimination. But it does remove the state
court’s ground of decision and entitle Hooper to an eviden-‐‑
tiary hearing in federal court. See Cullen v. Pinholster, 131 S.
Ct. 1388 (2011). If the state articulates a non-‐‑discriminatory
reason for all of the five contested peremptory challenges,
the district judge must decide whether each reason is honest.
The judge will not owe any deference to Judge Maloney’s
No. 12-‐‑1980 10
views; a federal evidentiary hearing leads to an independent
decision.
It seems unlikely that this can be done 32 years after the
trial. We do not know whether the prosecutors who exer-‐‑
cised these challenges are living or whether their memories
(or notes) will enable a reliable resolution. The State of Illi-‐‑
nois may think it prudent to forego the exercise and offer
Hooper another trial—though that, too, would be hard to
hold 33 years after the murders (which occurred on Novem-‐‑
ber 13, 1980) with much prospect of an accurate decision. But
the state can have a Batson hearing, if it thinks that one
would be fruitful.
The judgment of the district court is vacated, and the
case is remanded for further proceedings consistent with this
opinion.