NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 21, 2008
Decided May 13, 2008
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 05‐2007, 05‐2008
UNITED STATES OF AMERICA, ] Appeals from the United
] States District Court for
Plaintiff‐Appellee, ] the Northern District of
] Indiana, Hammond Division.
]
v. ] No. 01 CR 73
]
]
STYLES TAYLOR and KEON THOMAS, ]
] Charles R. Norgle, Sr.,
Defendants‐Appellants. ] Judge.
O R D E R
This case was previously before this court on a number of issues, including a
Batson challenge to the government’s use of its peremptory challenge to exclude
Nos. 05-2007 & 05-2008 2
African‐American potential juror Heshla Watson. United States v. Taylor, 509 F.3d 839
(7th Cir. 2007); Batson v. Kentucky, 476 U.S. 79 (1986). We affirmed the judgment of the
district court except as to the Batson challenge. We noted that the district court had not
explicitly ruled on the Batson challenge related to potential juror Watson, and ordered a
limited remand to provide the opportunity for the district court to decide the issue in
the first instance. On remand, the district court held that the peremptory challenge was
not exercised in a discriminatory manner.
In our opinion from the initial appeal in this case, we expressed our concern with
the government’s exercise of the peremptory challenge against Watson. As its race‐
neutral explanation for the challenge, the government had pointed to Watson’s answer
to its question regarding the ability to impose the death penalty on a non‐shooter.
When asked whether she could consider imposing the death penalty on a non‐shooter,
Watson had answered “no,” although that statement was ameliorated in subsequent
questioning by defense counsel. Although that type of answer could provide a race‐
neutral basis for a challenge, we noted that the sincerity of the proffered reason was
questionable because Caucasian potential jurors with similar answers were not
peremptorily challenged. In fact, we declared that “[w]e can discern no material
difference between Watson and Nowak with respect to their views on the non‐shooter
issue ‐ the sole reason the government supplied for its use of a peremptory strike against
Watson.” Taylor, 509 F.3d at 844. We noted that the unexplained discrepancy in
treatment made a strong case that the government removed Watson for discriminatory
reasons. We recognized, however, that the third step of Batson is a credibility
determination and is a question of fact left to the district court in the first instance.
Because the district court had not provided its rationale for denying the Batson
challenge, we remanded the case for the court to provide those reasons.
On remand, the district court noted that the basis for the peremptory challenge
was the same as that articulated by the government in its challenge for cause to
potential juror Watson, which was denied. According to the district court, the
government was clear that it was concerned with Watson’s categorical rejection of
imposing the death penalty on a non‐shooter. The district court stated:
The court finds that the government’s challenge to potential juror Watson
was honestly made and was race neutral. The strike was not racially
motivated. It was not pretextual. As the court heard and observed AUSA
Benson making the strike, the court concluded his motive was genuine.
Nos. 05-2007 & 05-2008 3
The court then stated that Benson’s demeanor was professional and candid, and that
there was no basis for the court to believe that he was not truthful as to the basis for the
challenge. The court concluded that the defendants had failed to prove purposeful
discrimination.
As we have repeatedly emphasized, the third step of Batson turns on the
determination of credibility, and we owe deference to a district court’s determination of
that issue. United States v. Stephens, 514 F.3d 703, 711 (7th Cir. 2008); United States v.
Hendrix, 509 F.3d 362, 370 (7th Cir. 2007); United States v. Griffin, 194 F.3d 808, 826 (7th
Cir. 1999). The Supreme Court has recognized that
[i]n the typical peremptory challenge inquiry, the decisive question will be
whether counsel’s race‐neutral explanation for a peremptory challenge
should be believed. There will seldom be much evidence bearing on that
issue, and the best evidence often will be the demeanor of the attorney
who exercises the challenge. As with the state of mind of a juror,
evaluation of the prosecutor’s state of mind based on demeanor and
credibility lies ‘peculiarly within a trial judge’s province.’
Hernandez v. New York, 500 U.S. 353, 365 (1991); United States v. Canoy, 38 F.3d 893, 899
(7th Cir. 1994). Although the district court’s decision gives us insight into the demeanor
of the prosecutor at the time of exercising the challenge, it provides no credibility
determination as to the critical issue, which is why the prosecutor 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. The continued
importance of this inquiry was recently recognized by the Supreme Court in Snyder v.
Louisiana, ___ U.S. ___, 128 S. Ct. 1203 (2008). Snyder emphasized that in considering a
Batson objection, all of the circumstances that bear on racial animosity must be
considered, including resolving whether an explanation is plausible in light of the
failure to use peremptory challenges against similarly‐situated white jurors. Id. at 1208,
1211. The Court in Snyder also acknowledged, however, that a retrospective
comparison of jurors based on a cold appellate record can be misleading, and that an
exploration by the trial judge may well reveal that they were not truly comparable. Id.
at 1211. That inquiry, and a determination as to whether the government’s explanation
is credible in light of that comparison, is what is missing here. The fault is partly ours
for this shortcoming, as we employed only a limited remand and asked the court to
assess the challenge in light of the record made during voir dire. The court’s response
Nos. 05-2007 & 05-2008 4
makes clear that the record lacks the evidence needed for that determination, because
the district court in assessing credibility failed to address in any way the disparity in the
government’s use of the challenges.
The unusual circumstances in this case explains the inadequate record. As we
noted in Taylor, 509 F.3d at 845, the defendants simultaneously raised challenges to two
peremptory challenges in a row. The government offered its reasons for the challenges,
but the district court addressed only one challenge, and did not focus on Watson.
Accordingly, the district court asked no further questions of the government as to
Watson, and it is apparent that further questioning is necessary here where its “race‐
neutral” reason for the peremptory challenge 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 government eliminated Watson based on the non‐
shooter question but chose not to challenge similarly‐situated white jurors. The court
must then make the credibility determination based on all of the relevant evidence,
properly developed. Therefore, the decision of the district court is VACATED and the
case REMANDED for the court to conduct an evidentiary hearing and to determine de
novo whether the Batson challenge has merit.