Harris v. Hardy

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-1434

JAMES H ARRIS,
Petitioner-Appellant,
v.

M ARCUS H ARDY, Warden,
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-01578—William T. Hart, Judge.

A RGUED O CTOBER 25, 2010—D ECIDED M AY 23, 2012

Before W OOD , W ILLIAMS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. In 1984 James Harris was con-
victed of murder, attempted murder, aggravated bat-
tery, and attempted armed robbery. He was sentenced
to death on the murder conviction and to terms of im-
prisonment on the other crimes. His sentence later was
commuted to life imprisonment by Illinois Governor
George Ryan. Harris asks us to review the district
court’s decision denying his petition for habeas corpus.
2 No. 10-1434

He raises three grounds for relief. He first contends that
the State exercised peremptory challenges based on race
in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Next
he contends that defense counsel rendered ineffective
assistance of counsel in failing to establish at the Batson
hearing the race of two venirepersons on whom the
State exercised peremptory strikes. Finally, he asserts
that the State failed to disclose impeachment evidence
at his second sentencing hearing in violation of Brady
v. Maryland, 373 U.S. 83 (1963). Because it was unrea-
sonable for the state courts to credit the prosecutor’s
proffered reasons for several peremptory challenges,
we conclude that the petition should be granted.

I. Background
In April 1984, a Cook County, Illinois, jury convicted
petitioner Harris of the murder of Jesse James, Sr., the
owner of a tavern on Chicago’s south side, and the at-
tempted murder of Theresa Woods, who worked as a
waitress at the tavern. The jury also convicted Harris of
aggravated battery and two counts of attempted robbery
arising out of the same incident.
The jury selection took place over the course of two
days. We will explain the process in general and then
discuss the particulars of the peremptory strikes that are
at issue in this case. The court used a variation of the
“jury box” system for jury selection, see, e.g., Roger Allan
Ford, Modeling the Effects of Peremptory Challenges on
Jury Selection and Jury Verdicts, 17 Geo. Mason L. Rev. 377,
383-87 (2010), and the parties do not contend that the
No. 10-1434 3

process was inconsistent with the Illinois criminal trial
court rules regarding voir dire and jury selection. See
ILCS S. Ct. Rule 431 (1971); ILCS S. Ct. Rule 434 (1982). Of
course, the number of jurors that ultimately would be
seated was twelve, not including alternates.
As it was explained in the record in the trial court, the
process worked this way: the prospective jurors would
be seated in the jury box in a series of groups, beginning
with a group of twelve to fourteen prospective jurors
who were seated in the order in which their names
were randomly drawn by the clerk of the court. The
judge would individually question the venirepersons in
the first group; he would then consider requests for
excuse from service by jurors as well as challenges for
cause and peremptory strikes exercised by the lawyers
for the prosecution and defense directed at the
individuals in that group. If four of the venirepersons
from that group were not excused or struck (for
cause or peremptorily), they then would be sworn as
jurors. It might be useful to think of that group of four
as a “mini-panel,” with the objective being to select
three such groups to reach the goal of having twelve
jurors. Alternatively, the first round of questioning and
striking could result in fewer or more than four prospec-
tive jurors “surviving” the striking. If the number was
less than four, those names would be set aside
temporarily while another round of questioning of a
fresh batch of venirepersons was conducted by the
judge. Next, counsel and the judge would return to the
judge’s office to challenge and strike from the fresh
batch. Any of the prospective jurors who had been
4 No. 10-1434

carried over from the preceding batch, but who had
not yet been sworn as a juror, could also be eliminated
by a party exercising a peremptory challenge against
that venireperson. (This is sometimes referred to as
“backstriking.”) When this second round of challenging
and striking of a batch was completed, the names of the
prospective jurors who “survived” that second striking
round would still be under consideration. However,
when those names totaled four, a “mini-panel” would
then be sworn. The opportunity to “backstrike” a prospec-
tive juror ended as soon as that person was sworn
and became one of the four members of a “mini-panel.”
What would happen if the number of prospective jurors
“surviving” the challenges and strikes of the first round
exceeded four, or if the combination of those carried
over from the first round, when added to those “sur-
viving” the second round exceeded four? In that event,
the first four (in the order of the random draw) of
those “surviving” jurors would be sworn as a “mini-
panel,” the additional names (assuming the number
was less than four) would be carried over, and a new
round of questioning of a fresh batch of prospective
jurors would be undertaken. This process would con-
tinue until three of the “mini-panels” were constituted.
Six rounds of questioning took place in this case over
the two days of jury selection.
The judge excused two jurors for cause during ques-
tioning. Otherwise, after the judge completed his ques-
tioning of a batch of jurors, counsel and the judge retired
to the judge’s office for the raising of other challenges
for cause and the exercise of peremptory strikes. The
No. 10-1434 5

judge excused two others for cause or hardship following
a discussion with the attorneys. The jury cards were put
in the order that the venirepersons were seated in the
jury box and the parties, by exercising peremptory strikes,
selected the four jurors that would comprise the first
“mini-panel.” This process was repeated to select the
second and third “mini-panels.” Throughout the course
of six striking sessions, both sides used all 20 of their
peremptory challenges. The State exercised 17 of its
peremptory strikes on African Americans. Two African
Americans, Robbie Abbott and Percy Chambers, served
on the jury. Both were chosen for the first “mini-panel”
of four when the prosecution still had most of its peremp-
tory strikes. One African American served as an alter-
nate juror.
Following trial, Harris was sentenced to death on the
murder conviction and terms of imprisonment on the
other crimes. On direct appeal to the Illinois Supreme
Court, Harris challenged his convictions on several
grounds. Among them, he argued that the State’s use
of peremptory challenges to exclude African Americans
from the jury denied him a fair trial. While his appeal
was pending, the Supreme Court decided Batson v. Ken-
tucky, 476 U.S. 79 (1986), and held that Batson applied
retroactively to all cases on direct review. Thereafter,
the Illinois Supreme Court issued a supervisory order,
retaining jurisdiction and remanding for a Batson hearing.
In July 1987, the judge who had presided over Harris’s
jury trial held a Batson hearing at which an Assistant
State’s Attorney (the “ASA”) who had participated in
6 No. 10-1434

jury selection testified about the State’s reasons for
striking certain jurors. The trial court found that because
the State exercised 17 of its 20 peremptory challenges
on African Americans, Harris established a prima facie
case of discrimination. The trial court accepted the
State’s proffered race-neutral reasons for the strikes,
stating: “[the ASA] was extremely candid throughout
the proceedings, and I believed his explanations through-
out.” Thus, the trial court found that the State used its
peremptory challenges on African Americans for non-
racial reasons and it rejected Harris’s Batson claim.
The case returned to the Illinois Supreme Court where
Harris renewed his previous arguments and further
argued that the trial court erred in rejecting his Batson
claim. The court vacated the death sentence and condi-
tionally vacated the convictions and other sentences
subject to reinstatement. People v. Harris, 544 N.E.2d 357
(Ill. 1989) (“Harris I”). The court concluded that in
deciding whether Harris made a prima facie case of
discrimination, the trial court erred in considering two
venirepersons, Christine Riley and Edward Shealy,
whose race was disputed. Id. at 378-79. The court, how-
ever, agreed that Harris had established a prima facie
case of discrimination and that the State rebutted the
prima facie case for 12 of the 15 African American
venirepersons. Id. at 379-87. The court reversed the
trial court’s finding that the State rebutted the prima
facie case as to 3 venirepersons, Milton Pickett, Essie
Taylor, and Betty Simmons, and remanded the case to
the trial court for new findings and conclusions
regarding the State’s explanations for striking them. Id.
at 383-86.
No. 10-1434 7

On remand the trial court found no Batson violation.
It conducted a second sentencing, once again imposing
the death penalty. Harris appealed to the Illinois Supreme
Court, challenging the Batson ruling and his sentence.
That court affirmed, concluding that the trial court’s
determination that the State provided race-neutral
reasons for exercising peremptory challenges against
Pickett, Taylor, and Simmons was not clearly erroneous.
People v. Harris, 647 N.E.2d 893, 899-903 (Ill. 1994) (“Harris
II”). One justice dissented, concluding that the State
excluded these 3 venirepersons because of their race. Id.
at 908-10 (Harrison, J., dissenting).
Harris filed a postconviction petition, raising an
ineffective-assistance-of-counsel claim related to his
counsel’s failure to establish at the Batson hearing the
race of Riley and Shealy. Harris also claimed that he
was denied due process in violation of Brady v. Maryland,
373 U.S. 83 (1963), based on the State’s nondisclosure
of medical records that would have impeached a witness
who testified to aggravation evidence at his second sen-
tencing hearing. The circuit court dismissed his petition
without an evidentiary hearing. Harris appealed directly
to the Illinois Supreme Court, which affirmed in part
and reversed in part, remanding for an evidentiary
hearing with respect to the Brady claim. People v. Harris,
794 N.E.2d 314 (Ill. 2002) (“Harris III”). The court rejected
the Batson claim as to Riley (referred to in the opinion
as Brown) and Shealy, finding no error in the trial
court’s determination that the prosecutor’s explanations
for excluding them were legitimate and race-neutral. Id.
at 327-30. It specifically noted that at the conclusion of
8 No. 10-1434

the Batson hearing, the trial court found “the challenges
were used for neutral reasons[,] not for racial ones.” Id.
at 327 (alteration in original). Harris’s death sentence
subsequently was commuted to natural life without
parole by Governor Ryan, and the trial court dismissed
his petition as moot without an evidentiary hearing.
Harris appealed to the Illinois Appellate Court, which
affirmed, and the Illinois Supreme Court denied review.
People v. Harris, 849 N.E.2d 334 (Ill. 2006).
Harris sought habeas relief under 28 U.S.C. § 2254,
raising his Batson claim, an ineffective-assistance-of-
counsel claim aimed at his Batson-hearing counsel’s
failure to establish the race of Riley and Shealy, and his
Brady claim. The district court ordered discovery on
the Brady claim but ultimately denied all relief. Harris
sought a certificate of appealability and the district court
issued a certificate as to all claims.

II. Analysis
We review the district court’s denial of a habeas
petition de novo. Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir.),
cert. denied, 131 S. Ct. 578 (2010). Under the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), we
deferentially review the decision of the last state court to
address Harris’s claims on the merits. See id. A federal
court may not grant habeas relief unless the state
court’s adjudication of a claim “ ‘was contrary to, or
involved an unreasonable application of clearly estab-
lished Federal law as determined by the Supreme Court
No. 10-1434 9

of the United States,’ or ‘was based on an unreasonable
determination of the facts in light of the evidence pre-
sented.’ ” Id. (quoting 28 U.S.C. § 2254(d)). Under
the “unreasonable application” of law clause, “a federal
habeas court may grant the writ if the state court
identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). This means
that the state court’s application of law must have been
“objectively unreasonable.” Id. at 409.
Harris claims that the prosecutors violated his equal
protection rights and Batson v. Kentucky, 476 U.S. 79 (1986),
by using peremptory strikes to exclude African American
venirepersons from the jury. He contends that the state
courts’ rejection of his Batson claim was based on an
unreasonable determination of the facts in light of the
evidence presented. Harris specifically challenges the
State’s peremptory strikes of seven African Americans:
Lucille Woodard, Wilbert Stearn, Milton Pickett, Essie
Taylor, Betty Simmons, Emma Alexander, and Lisa
Lucas. He also challenges the State’s strikes of Christine
Riley and Edward Shealy, but in the context of his
ineffective-assistance-of-Batson counsel claim. He asserts
that had Batson-counsel established their race, there is
a reasonable probability that the state court would
have found that the prosecutor engaged in purposeful
10 No. 10-1434

discrimination in jury selection.1 In reviewing Harris’s
Batson claim, we keep in mind that the exclusion of even
one venireperson because of race violates the Equal
Protection Clause. See Snyder v. Louisiana, 552 U.S. 472,
478 (2008).
Batson claims are evaluated under a now familiar three-
step inquiry. First, the opponent of a peremptory chal-
lenge must make out a prima facie showing of race dis-
crimination in selection of the venire. If this showing is
made, the burden of production shifts to the proponent
of the strike to offer a race-neutral explanation. Then
the court must determine whether the opponent of the
strike has proved purposeful discrimination. Purkett v.
Elem, 514 U.S. 765, 767-68 (1995) (per curiam); Batson,
476 U.S. at 96-98. At the second step, the explanation
need not be “persuasive, or even plausible”; the issue is
whether the explanation is non-discriminatory. Purkett,
514 U.S. at 767-68. The persuasiveness of the justifica-
tion becomes relevant at the third step, in which the
court weighs the evidence and determines whether the
race-neutral explanation is credible or a pretext for pur-
poseful discrimination. Id. at 768; see also United States v.
Rutledge, 648 F.3d 555, 556-57 (7th Cir. 2011) (stating that

1
When reviewing the Batson claim, the Illinois Supreme
Court initially declined to consider the strikes of Riley and
Shealy. Harris I, 544 N.E.2d at 378-79. Later, when reviewing
the ineffective-assistance-of-Batson-counsel claim, the court
concluded that the Batson claim was meritless as to them.
Harris III, 794 N.E.2d at 326-30.
No. 10-1434 11

Batson’s third step “requires the [trial] court to make a
finding of fact regarding the prosecutor’s credibility
after the prosecutor has offered a race-neutral reason
for the strike”).
Credibility can be evaluated based on many factors,
including “the [proponent’s] demeanor; by how reason-
able, or how improbable, the explanations are; and by
whether the proffered rationale has some basis in
accepted trial strategy.” Miller-El v. Cockrell, 537 U.S. 322,
339 (2003) (“Miller-El I”); see also Hernandez v. New York,
500 U.S. 352, 365 (1991) (stating that “the best evidence”
of discriminatory intent “often will be the demeanor of
the attorney who exercises the challenge”). Credibility
can also be determined “by considering the offering
party’s consistency in applying its non-discriminatory
justification.” United States v. Stephens, 514 F.3d 703, 711
(7th Cir. 2008). “[I]f a [party’s] proffered reason for
striking [a prospective juror of one race] applies just as
well to an otherwise-similar [juror of a different race]
who is permitted to serve, that is evidence tending to
prove purposeful discrimination to be considered at
Batson’s third step.” Miller-El v. Dretke, 545 U.S. 231, 241
(2005) (“Miller-El II”); see also United States v. Taylor, 636
F.3d 901, 905 (7th Cir. 2011) (quoting Miller-El II).
“[I]mplausible or fantastic justifications may (and
probably will) be found to be pretexts for purposeful
discrimination.” Purkett, 514 U.S. at 768.
An opponent of a strike “may rely on ‘all relevant cir-
cumstances’ to raise an inference of purposeful discrim-
ination.” Miller-El II, 545 U.S. at 240 (quoting Batson,
12 No. 10-1434

476 U.S. at 96-97). A pattern of strikes against members
of a particular race may give rise to an inference of discrim-
ination. Batson, 476 U.S. at 97; Miller-El II, 545 U.S. at 240-
41 (characterizing the prosecutors’ use of peremptory
strikes as “remarkable” where 9 African Americans were
excused for cause or by agreement and the prosecutors
peremptorily struck 10 African Americans); Miller-El I,
537 U.S. at 331 (prosecutors used 10 of their 14 pe-
remptory strikes against African Americans and only
20 of the 108 possible jurors under consideration were
African American). “Such a pattern can be evident
where a prosecutor uses peremptory challenges to elimi-
nate all, or nearly all, members of a particular race.”
United States v. Stephens, 421 F.3d 503, 512 (7th Cir. 2005)
(analyzing strikes at Batson’s first step). Courts also have
“considered whether a disproportionate number of pe-
remptory challenges were exercised to exclude members
of a particular cognizable group.” Id.
On direct review of a Batson claim, a trial court’s
factual findings on the question of discriminatory intent,
which largely turn “on evaluation of credibility,” Batson,
476 U.S. at 98 n.21, are entitled to “great deference,” Felkner
v. Jackson, 131 S. Ct. 1305, 1307 (2011) (per curiam) (quoting
Batson). “Deference is necessary because a reviewing
court, which analyzes only the transcripts from voir dire,
is not as well positioned as the trial court is to make
credibility determinations.” Miller-El I, 537 U.S. at 339.
On federal habeas review, however, the standard is even
more demanding. Id. at 339-40; see also Hardy v. Cross, 132
S. Ct. 490, 491 (2011) (per curiam). We cannot “second-
guess the reasonable decisions of state courts.” Renico v.
No. 10-1434 13

Lett, 559 U.S. ___, 130 S. Ct. 1855, 1866 (2010). A state
court’s “[f]actual determinations . . . are presumed correct
absent clear and convincing evidence to the contrary.”
Miller-El I, 537 U.S. at 340 (citing § 2254(e)(1)).
Nonetheless, “deference does not imply abandonment
or abdication of judicial review. . . . A federal court can
disagree with a state court’s credibility determination
and, when guided by AEDPA, conclude the decision
was unreasonable[.]” Id.; see also Rice v. Collins, 546 U.S.
333, 338 (2006) (stating that under AEDPA, we “must
find the state-court conclusion ‘an unreasonable deter-
mination of the facts in light of the evidence pre-
sented in the State court proceeding.’ ” (quoting 28 U.S.C.
§ 2254(d)(2))); Goudy v. Basinger, 604 F.3d 394, 399 (7th
Cir. 2010) (“[A] decision involves an unreasonable deter-
mination of the facts if it rests upon fact-finding that
ignores the clear and convincing weight of the evidence.”).
Thus, we may grant the habeas petition only “if it
was unreasonable [for the state court] to credit the pros-
ecutor’s race-neutral explanations for the Batson chal-
lenge.” Rice, 546 U.S. at 338; see also Mahaffey v. Ramos,
588 F.3d 1142, 1146 (7th Cir. 2009) (explaining that we
do not reverse the state court’s decision to credit a race-
neutral reason “unless the reason given is completely
outlandish or there is other evidence which demon-
strates its falsity”), cert. denied, 130 S. Ct. 3503 (2010).
Harris first argues that the prosecutor’s purposeful
discrimination is evidenced by “sheer mathematics.”
Disparate impact upon a particular race is not sufficient
to establish purposeful discrimination. Hernandez, 500
14 No. 10-1434

U.S. at 359-62; see also Mahaffey, 588 F.3d at 1146 (“[M]ore
than ‘bare statistics’ is required to prove purposeful
discrimination.”) (quoting Miller-El II, 545 U.S. at 241).
But disparate impact “should be given appropriate
weight in determining whether the prosecutor acted with
a forbidden intent.” Hernandez, 500 U.S. at 362; see also
Miller-El I, 537 U.S. at 342 (“In this case, the statistical
evidence alone raises some debate as to whether the
prosecution acted with a race-based reason when
striking prospective jurors.”).
Sixty prospective jurors were questioned during voir
dire. Four of them were excused by the court for cause
or hardship. The State used at least 15 of its 20
peremptory strikes, or 75%, on African Americans. If
Riley and Shealy are included in the calculation, these
numbers rise to 17 of 20 and 85%. Although the record
does not reveal the race of all 60 jurors under consider-
ation, at oral argument, respondent’s counsel stated
that 21 of the examined prospective jurors were African
American and that the defense excluded one of them.
Harris did not dispute these numbers in his reply argu-
ment. Hence, African Americans composed 35% (21 of
60) of the prospective jurors under consideration. The
State removed at least 71% of them (15 of 21). This
number rises to 81% if Riley and Shealy are included.
Thus, the State used its peremptory strikes to eliminate
nearly all the African American prospective jurors.
We are aware that Harris has not challenged every
peremptory strike the State used on an African American;
he challenges 9 of the 17 strikes. But that does not make
No. 10-1434 15

the pattern of strikes any less probative. Cf. Miller-El II,
545 U.S. at 240-52 (considering prosecutors’ challenges
of 91% of the eligible African Americans and concluding
that the prosecutors’ strikes of 2 African Americans
were because of their race). The State’s disproportionate
use of its peremptory challenges to exclude African
Americans must be taken into account in deciding
whether the State struck venirepersons because of their
race. And its use of peremptory challenges to remove
nearly all African Americans must also be considered.
This pattern of peremptory strikes against African Ameri-
cans gives rise to an inference of discrimination.
At the Batson hearing, the trial court stated that it
was considering the use of peremptory strikes in their
context: “I have considered the use of the peremptory
challenges in this case and I have particularly considered
them within the context that they were used, that is, the
context of the jury being constructed as it were.” Yet the
trial court’s analysis reflects only that it examined each
challenged strike individually. The court’s comments do
not reveal that in the third step of its Batson analysis, it
weighed the fact that the State used at least 75% of its
peremptory strikes on and excluded at least 71% of the
African American prospective jurors—telling circum-
stances underlying each and every strike. This evidence
of pretext was not confronted but rather was overlooked
by the trial court in assessing the prosecutor’s credibility
as to the reasons for using peremptory challenges on
certain African Americans.
The Illinois Supreme Court noted that both sides used
all their 20 peremptory challenges, 2 African Americans
16 No. 10-1434

served as jurors, 1 served as an alternate, and it was
undisputed that the State used 15 of its 20 peremptory
challenges on African Americans. Harris II, 647 N.E.2d
at 898; Harris I, 544 N.E.2d at 377-79. The court also
said that “the record demonstrates a pattern of
strikes by the State against 15 venirepersons whose only
common characteristic was that they were black” and
agreed with the trial court that this established a prima
facie case of discrimination. Harris I, 544 N.E.2d at 379.
But we can find no indication in the state court’s
decisions that it took this pattern of strikes into consider-
ation when reviewing the trial court’s decision at the
third step of the Batson analysis. Like the trial court,
the state supreme court examined each challenged
strike and each reason given for a strike individually
and without giving weight to the overall picture
that points to the conclusion that the prosecution
acted with discriminatory intent in using peremptory
challenges.
The trial court did observe that the State used a number
of peremptory strikes against African Americans in the
first group of jurors under consideration, but found
it “particularly significant” that during the same period
of time the State accepted an African American juror,
Abbott. The court’s consideration of this fact was proper.
See United States v. Nichols, 937 F.2d 1257, 1264 (7th
Cir. 1991) (noting that 3 African American jurors were
seated while the government still had peremptory chal-
lenges available which suggested the prosecutors had
no discriminatory intent). Actually, the record shows
that the State accepted another African American, Cham-
No. 10-1434 17

bers, around the same time. Both of them were accepted
early in the jury selection process while the State still
had most of its peremptory strikes. As noted, though, the
State excluded at least 71% if not 81% of the African
Americans under consideration from the jury. These
numbers are staggering. The “total or seriously dispro-
portionate exclusion of [African Americans] from jury
venires is itself . . . an unequal application of the law . . .
as to show intentional discrimination.” Batson, 476 U.S.
at 93 (internal quotations and citation omitted); see also
Miller-El II, 545 U.S. at 241 (“The prosecutors used
their peremptory strikes to exclude 91% of the eligible
African-American venire members . . . . Happenstance
is unlikely to produce this disparity.” (quoting Miller-El I,
537 U.S. at 342)).
Batson instructs that in deciding if a defendant has
shown purposeful discrimination, courts must consider
“ ‘such circumstantial and direct evidence of intent as
may be available.’ ” 476 U.S. at 93 (quoting Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977));
see also id. at 96 (directing courts to consider “all relevant
circumstances” in deciding if a defendant has shown
purposeful discrimination). The Court reiterated this
point in subsequent decisions applying Batson. Snyder v.
Louisiana, 552 U.S. 472, 478 (2008) (“[I]n considering a
Batson objection, or in reviewing a ruling claimed to be
Batson error, all of the circumstances that bear upon the
issue of racial animosity must be consulted.”); Miller-El II,
545 U.S. at 251-52 (“[T]he rule in Batson provides an
opportunity to the prosecutor to give the reason for
striking the juror, and it requires the judge to assess
18 No. 10-1434

the plausibility of that reason in light of all evidence
with a bearing on it.”); Hernandez, 500 U.S. at 363 (“An
invidious discriminatory purpose may often be inferred
from the totality of the relevant facts.” (quoting Washington
v. Davis, 426 U.S. 229, 242 (1976))). These decisions were
not “clearly established Federal law” at the time of the
state court’s rulings in Harris’s case, but they do reflect
the Court’s understanding of Batson’s requirements.
At least one circuit has held that in deciding a Batson
claim, a state court’s failure to consider all available
evidence, including a pattern of strikes against members
of one race, was an unreasonable application of law. See
McGahee v. Ala. Dep’t of Corrs., 560 F.3d 1252, 1261-66
(11th Cir. 2009). And another circuit has concluded that
a court’s failure to consider all the evidence in the
record, specifically comparative evidence, when ruling
on a Batson claim resulted in an unreasonable determina-
tion of facts. See Kesser v. Cambra, 465 F.3d 351, 358 (9th
Cir. 2006) (en banc). For our part, we have said that in
“incorrectly recount[ing] much of the record and fail[ing]
to note material portions,” a district court misapplied
Batson. Stephens, 514 F.3d at 713. As a result, we could
not defer to the district court’s decision finding inten-
tional discrimination. Id. at 712 (“[D]eference is due
only when a . . . court properly performs its task in the
first instance. . . . [W]e cannot defer to a . . . decision that
ignores material portions of the record without explana-
tion.”). The State’s acceptance of 2 African American
jurors and 1 alternate juror cannot overcome the clear
evidence in the record that the prosecution excused
nearly all the other African American prospective jurors.
No. 10-1434 19

This disparate impact raises an inference of discrimina-
tion and must be given appropriate weight in deciding
whether Harris has proved a Batson violation.
Even more compelling, though, is the fact that the
State’s proffered reasons are simply unbelievable in
light of all the evidence presented in the State court
proceeding, even when viewed under the highly deferen-
tial standard of review that constrains us here. Many of the
justifications the prosecutor gave for striking African
Americans simply do not hold up under scrutiny—the
prosecutor misstated or mischaracterized the record.
And this bears on the assessment of the plausibility of the
other justifications given for a particular strike—reasons
that might otherwise be deemed race-neutral. See, e.g.,
Miller-El II, 545 U.S. at 252 (noting the “pretextual signifi-
cance” when a prosecutor’s stated reason does not
hold up); Kesser, 465 F.3d at 360 (“A court need not find
all nonracial reasons pretextual in order to find racial
discrimination.”). Further, a comparative juror analysis
shows that the purported reasons for striking certain
African Americans were not equally applied to non-
African Americans. This, too, is evidence of pretext.
And each challenged strike and inference of pretext must
be considered as it bears on the others. The pretextual
significance has not been explained away.
The only reasonable inference that can be drawn from
the record is that the proffered reasons were pretexts
for purposeful race discrimination. The state court’s
contrary finding was based on an unreasonable deter-
mination of the facts and thus its decisions were unreason-
able. We reach this conclusion with some hesitation; we
20 No. 10-1434

are well aware of the great deference we owe to the
state court’s factual determinations and we do not lightly
overturn its findings. But we cannot shy away from the
powerful evidence in the record that Harris has proved
purposeful race discrimination. Keep in mind that one
discriminatory strike is enough to show an equal pro-
tection violation; as will be shown, we conclude that
no less than 5 of the strikes should have been disallowed
under Batson.

Lucille Woodard
Let’s begin with Lucille Woodard. In explaining the use
of a peremptory strike against her, the ASA said:
As to Lucille Woodard, there were missing
elements in her [juror] card. The fact that she was
divorced. There was no indication of where her
husband had been employed, and the age of the
juror was not indicated on the card either.
The area that Lucille Woodard lived is basically
the same area where this incident took place, but
overall, I will say that I did not have a lot of infor-
mation about Lucille Woodard. There was nothing
that jumped out at me that would make her an
unacceptable juror the way many of the other
jurors that I have been mentioning did.
The ASA continued:
And I think from what I have been able to glean from
the transcript is that she was not excused by the
State or by the defense at the end of that day.
No. 10-1434 21

It’s my understanding that she was still under
consideration as a potential juror the next day.
The questioning of her was somewhat truncated
probably because of the hour when she was ques-
tioned.
She was . . . one of the very last jurors to be
questioned that day, if not the last one, and what
would happen then, if I may state for the record,
because it definitely influences the way I select
jurors, the way I did select jurors in this courtroom.
What your Honor would do would be to have
14 people in the jury box, and you would ques-
tion each and every one of them as a group,
and then we would excuse ourselves to your
chambers where we would put out the cards in
the order that they are in the jury box, and then
the State would select the four jurors in line that
would make up the first panel, and the second
panel, and the third panel, exercising peremptory
challenges in your chambers area, out of the
view of the jury itself.
What would have happened with Lucille
Woodard is that when we began the next session
with new jurors, she would have been sitting in
the first seat herself, and then we’d complete
the box filled up with new potential jurors.
I don’t have a clear recollection of Lucille
Woodard. I don’t remember her from the questions
that were asked of her, and it’s very probable that
I did not remember a lot about her the next day.
22 No. 10-1434

(Emphasis added). The ASA explained that Woodard
was seated in the jury box with 13 prospective jurors he
had just heard about and of whom he “would have had
a very keen knowledge.” But for Woodard, “the informa-
tion was very sketchy to begin with, and by the next
day I’m sure it was much sketchier.” He added:
I believe I exercised a peremptory challenge
against Lucille Woodard because of that lack of
knowledge and the fact that her card wasn’t com-
plete, . . . but also because I had new jurors in the
box that, from that next day, that I did have very
good information about, and jurors that I did want
to have on my jury, and not just jurors that I did
not want.
(Emphasis added). The Illinois Supreme Court concluded
that this was a race-neutral, clear, and reasonably specific
reason for exercising the peremptory challenge. Harris I,
544 N.E.2d at 383. The court determined that “the State . . .
knew precisely why it exercised its challenge: the
State exercised its challenge because due to the timing
and order of questioning during voir dire, the prosecutor
had lost his recollection of the . . . venireperson. As a
result, the prosecutor did not have enough information
about the venireperson to feel comfortable with having
her on the jury.” Id. The State’s decision is unreasonable.
True, Woodard was the second to last venireperson
examined on the first day of trial and was still under
consideration the next day when 11 others were
examined before the exercise of any further peremptory
strikes. See id. at 382. The ASA said that the questioning
No. 10-1434 23

of Woodard was somewhat truncated. To the contrary,
the trial judge asked 21 questions of Woodard on the
following subjects: where she lived, her occupation, her
employer, her length of employment, her prior employ-
ment, where she attended high school, how long she
lived in Chicago, the type of work her former husband
did, her child, whether she or any close friends or family
members had ever been a crime victim, and when she
answered affirmatively, the judge asked her about the
circumstances of the victimization and whether that
would interfere with her ability to hear the case on trial
and give both sides a fair trial. The judge also asked
her whether she or any close friends or family members
had ever been accused by the police of any criminal
matters, and again questioned whether she could give
both sides a fair trial in the case. Nothing in the record
suggests that the questioning of Woodard was truncated.
Questions comparable in number and topic were put to
the other venirepersons, even those questioned on the
second day of jury selection.
Furthermore, the record shows that the ASA did not
know why he struck Woodard. No doubt the passage
of time played a part in his inability to recollect the
reasons for striking her. See Miller El I, 537 U.S. at 342-43
(noting that the evidence presented at the Batson
hearing two years after the trial was “subject to the
usual risks of imprecision and distortion from the
passage of time”). The ASA’s testimony at the Batson
hearing suggests that he was not reciting his recollection
of his reasons for the strike but rather was looking at
the record and trying to come up with race-neutral
24 No. 10-1434

reasons to justify the strike. (This was true throughout
his testimony at the belated Batson hearing.) It is insuffi-
cient for a prosecutor merely to identify race-neutral
reasons why the State could have exercised a strike
against a prospective juror; instead, “the prosecutor
must give a ‘clear and reasonably specific’ explanation of
his ‘legitimate reasons’ for exercising the challenges.” Batson,
476 U.S. at 98 n.20 (quoting Texas Dep’t of Comm. Affairs
v. Burdine, 450 U.S. 248, 258 (1981) (emphasis added)). The
ASA testified that at the time he exercised the strike,
he lacked information about Woodard and probably
could not recall much about her from the day before. If
he didn’t have a clear recollection of Woodard the very
next day after she was questioned, we can reasonably
doubt that his memory had improved by the time of the
Batson hearing more than 3 years later. If the ASA is to be
believed, he basically wasted a peremptory strike on
Woodard. That would contradict his claim that the
State’s exercise of strikes was based on comparative
choices among jurors and gives rise to an inference
that the proffered reasons for striking Woodard were
pretexts for discrimination.
It is true that the trial court’s credibility determina-
tions are to be given substantial deference. This is based
on the concept that the trial judge is intimately involved
in the jury selection process and is face-to-face with
the participants. But the discussion of the ASA’s credi-
bility by the trial judge did not take place during the
jury selection process, shortly after the exercise of the
challenged strikes. Instead, the court’s comments were
made some 3 years after the strikes were made. And as
No. 10-1434 25

we discuss throughout this opinion, the ASA’s explana-
tion of the reasons for the strikes appears to have been
recreated, principally from reviewing the transcripts of
the jury selection process, again roughly 3 years after
the strikes were used. We don’t doubt that the ASA
appeared to be sincere when giving his testimony about
the strikes. But the problem is that his stated reasons for
the Woodard strike (and others that we discuss) are
contradicted by the comparison with other jurors that
were acceptable to the State. As such, the conclusory
comments by the trial judge about the ASA’s credibility
ring hollow. Cf. Miller-El II, 545 U.S. at 241 n.1 (suggesting
that a lengthy delay between voir dire and the post-trial
Batson hearing weakens the deference due state courts’
factual findings); Rutledge, 648 F.3d at 562 (recognizing
that the passage of time may preclude the trial court
from making findings as to the prosecutor’s credibility
at Batson’s third step); United States v. McMath, 559 F.3d
657, 666 (7th Cir. 2009) (noting that the “passage of time
[may] make it impossible for the [trial] judge to make
findings of fact” but a “remand may be more worthwhile
in this case, as voir dire occurred only a little over
a year ago”).
Although the Illinois Supreme Court did not discuss
the other reasons given for striking Woodard, the trial
judge did refer to them. He said that “in considering all of
the reasons given . . . I cannot conclude that the peremp-
tory challenge used on Lucille Woodard was used for a
racially motivated reason.” As support, he noted that the
State had accepted Abbott, an African American, about
the same time that it struck Woodard. The judge also
26 No. 10-1434

reasoned that he thought it was proper to make compara-
tive choices among jurors, as long as the comparisons
did not take race into account. The fact that the ASA
claimed that he struck Woodard because of a lack of
knowledge about her while at the same time proceeding
to offer several specific reasons for striking her is quite
troubling. If the ASA struck her because he didn’t have
a clear recollection of her, then these other explanations
ring hollow.
On appeal, respondent asserts that the ASA merely
mentioned Woodard’s divorce, age, and residence—these
were not the reasons for striking her. The record pro-
vides no support for this view, which is inconsistent
with respondent’s arguments as to other challenged
jurors for whom he defends the strike on all the reasons
“mentioned” by the ASA. And if we accept the view
that the ASA merely mentioned these facts and didn’t
rely on them as justifications for the strike, his testimony
would tend to show that he kept throwing out possible
race-neutral reasons for the strike until he thought he
found one that would be accepted. As noted, any old
reason doesn’t cut it; the prosecutor must state his reason
for using the challenge. See Batson, 476 U.S. at 98 n.20.
And there is more. The ASA’s recitation of reasons why
he may have struck Woodard is inconsistent with other
parts of his testimony. The ASA noted that Woodard was
divorced; respondent has stated that the ASA was con-
cerned about Woodard’s divorce. Yet a few moments
later, the ASA claimed that nothing about Woodard
jumped out at him that would make her an unacceptable
No. 10-1434 27

juror. What happened to his concern about her divorce?
And if Woodard’s divorce was a concern to the ASA, then
he should also have been concerned that non-African
Americans Theresa Najdowski and Ann Folan were
divorced. Nevertheless, the State allowed them to serve
on the jury. Respondent argues that Folan is not an ap-
propriate comparator because the State had exercised all
of its peremptory strikes by the time she was under
consideration, but as we explain below, the Illinois Su-
preme Court’s finding that the State had exercised all its
peremptory challenges before the white teacher (Folan)
was questioned, was an unreasonable factual determina-
tion. As for Najdowski, respondent argues that although
she was divorced, she was the first person questioned
in the venire so she would have been fresh in the ASA’s
mind when he considered her, in contrast with Woodard.
That may be true. But it does not explain why the fact of
Woodard’s divorce supposedly mattered to the ASA,
yet he did not likewise find Najdowski’s and Folan’s
divorces reasons to challenge them. That he didn’t tends
to prove purposeful discrimination.
In considering the strike of Woodard in light of all
relevant circumstances, the only reasonable inference
that can be drawn is that she was excluded because of
her race. It was unreasonable for the state court to
credit the race-neutral reasons for striking her.

Wilbert Stearn
Wilbert Stearn is a struck juror for whom the State’s race-
neutral justification simply doesn’t hold up. At the time
of the trial, Stearn was employed as a steel worker;
28 No. 10-1434

he previously had been a grammar schoolteacher for
several years. The ASA also noted that Stearn was a
music major in college and his wife was a teacher. He
was quite critical of Stearn’s job change. He claimed that
Stearn’s move from a teaching position, which he had
held for many years and for which he had gone to
graduate school, to a blue-collar type job “was a matter
that gave [him] pause.” The ASA said that “without
having had a chance to talk to him at length and get to
know him better, I did not feel that I could understand
exactly what Mr. Stearn would do on that jury or what
his feelings or prejudices might be. . . . He was not the
type of juror from . . . his background, that I would
have wanted on my jury.”
There is nothing suspicious about Stearn’s job change.
As the father of 7 children, it is unsurprising that he
would leave his teaching job for what no doubt was a
higher paying job. The trial court erred in finding that
there was “something suspicious” about a person who
was a teacher “who took another job of conceivably a
lesser status, although a higher pay.” This explanation
for striking Stearn smacks of pretext.
Job change aside, Stearn otherwise fits the prosecutor’s
description of a desirable juror. The fact that a stricken
juror “should have been an ideal juror in the eyes of a
prosecutor” is one of those relevant circumstances to
be considered in deciding whether Harris has raised
an inference of purposeful discrimination. See Miller-El II,
545 U.S. at 247. The ASA claimed that he was “basically
looking for people that ha[d] strong roots to the com-
No. 10-1434 29

munity” and “a substantial investment in living in
the city.” He said that he considered such factors as
whether they were homeowners, whether they had
lived in the same community or location for a number
of years, the types of jobs they had, how often they
changed jobs, how long they had been at their current
job, and whether they had advanced, moved laterally or
moved down, and if they have families, whether their
families had roots in the community. Granted, the ASA
also said that he considered whether the juror had
changed professions from a “more academically oriented
profession to a less academically oriented profession
or vice versa.” At the time of the trial, Stearn was 53
years old, married, and, as noted, the father of 7 children.
He had lived in Chicago for almost 20 years and owned
his own home where he had lived for 15 years. He was
employed as a roller line leader at U. S. Steel, where he
had worked for 14 years, and he was well-educated
with a bachelor’s degree and 1½ years of graduate
studies in education.
The Illinois Supreme Court noted Harris’s claim that
Stearn “had strong ties to the community” and then said
that “[t]hough a minority venireperson may otherwise
possess all of the traits which the State is looking for in
a juror, he may possess an additional trait which makes
him undesirable.” Harris I, 544 N.E.2d at 382. The court
next discussed the contention that the State allowed
a white teacher (Folan) onto the jury, correctly observing
that “evidence that a stricken minority venireperson
possessed the same characteristics as a nonminority
juror . . . [accepted by the State] should certainly be
30 No. 10-1434

given great weight by the trial court in evaluating the
State’s explanations.” Id. Nonetheless, the court con-
cluded that the fact that a white teacher (Folan) served
on the jury did not give rise to pretext because “by the
time the white teacher was questioned during voir dire,
the State had exercised all of its peremptory challenges.
As a result, the State had no choice as to whether or not
it should exercise a peremptory challenge.” Id.
Harris has shown that the State used its 20th and
final peremptory challenge against Robert Allan, who
was questioned right before Folan, and the State did
not exercise this challenge until after Allan, Folan, and
several others had been questioned. Therefore, the
state court’s determination that by the time the white
teacher (Folan) was questioned during voir dire, the
State had exercised all of its peremptory challenges and
thus could not decide whether or not to exercise a chal-
lenge against her, was based on an unreasonable deter-
mination of the facts. The fact that this justification
for striking Stearn—because he was married to a
teacher—would apply equally (if not more so) to
Folan who herself was a teacher, and the fact that the
State had the opportunity to strike her but did not,
shows that this explanation was pretextual. Moreover,
the fact that the State accepted Folan but struck Stearn
should have been given appropriate weight by the
state court in evaluating the State’s justifications for
striking Stearn. It wasn’t, though, since the state court
erroneously rejected the comparison of Stearn to Folan.
The final reason offered to explain the strike of Stearn
was that he was a music major. The ASA explained that
No. 10-1434 31

a person with a music or other liberal arts major was
the type of person who tends to be creative and considers
matters outside the evidence and may go beyond the
strictures of the law. Although this explanation made
“no sense” to the trial judge, he credited it, noting that
it had to be “scrutinize[d] to see whether that is a cover
for a racial motivation[.]” Although the Illinois Supreme
Court mentioned this explanation, it did not directly
address it. See id. at 381-82. The implausibility of the
music major rationale is reinforced by the pretextual
significance of the other justifications offered for
the strike of Stearn. See, e.g., Snyder, 552 U.S. at 478;
Miller-El II, 545 U.S. at 251-52.
The only reasonable inference that can be drawn from
all the circumstances in the record is that the reasons
offered for the strike of Stearn were pretexts for discrim-
ination. Thus, the state court’s acceptance of the prosecu-
tion’s justifications for the strike of Stearn was unrea-
sonable.

Essie Taylor
It was also unreasonable for the state court to credit
the prosecutor’s race-neutral explanations for striking
Essie Taylor. The ASA said: “As to Essie Taylor, there
was very limited questioning as to [her] in the record.
There was no questioning at all about the husband’s self-
employed status. I did not know where he worked or
in what capacity or what profession he was even in.
Even though there was an indication on the [juror] card
that he was self-employed.” It is true that Taylor did not
32 No. 10-1434

provide complete information about her husband’s em-
ployment and was not asked about his employment
during voir dire. The Illinois Supreme Court found this
to be a race-neutral reason for striking her. Harris II,
647 N.E.2d at 901.
But the ASA also claimed that the area Taylor lived
in “was relatively close to the area where this incident
had occurred.” As it turned out, however, Taylor
actually lived 3½ miles away. At best, the ASA was
simply mistaken in his belief about the proximity of
Taylor’s residence to the crime. Initially, the trial court
thought that striking Taylor because she lived “reason-
ably within the area of the city” where the defendant
lived was a race-neutral reason. (The Illinois Supreme
Court noted that the trial court thought Taylor lived
within one mile of Harris. Harris I, 544 N.E.2d at 385.)
The trial court’s finding was not supported by the
record and was erroneous, and accordingly was rejected
by the Illinois Supreme Court. Id. And so the case was
remanded. Id. On remand, the trial court found that
Taylor lived relatively close to the area where the
incident occurred, concluding that 3½ miles could be
described as “relatively close,” and further found that
this was a race-neutral reason for excluding her.
These explanations, however, become quite suspicious
when viewed in the context of the ASA’s additional
justification for striking Taylor. Similar to Woodard, he
claimed:
And it was because of a lack of information and
lack of knowledge that I did not feel I had a good
No. 10-1434 33

handle on Essie Taylor. I did not find her to be
the kind of a juror that I was going to exercise
automatically . . . a peremptory challenge [against],
but it was because of other jurors that I wanted
on my jury that I believe Essie Taylor was ex-
cused[.]
However, the ASA could not recall which prospective
jurors were in the same block of jurors that was con-
sidered by the parties at the time Taylor was stricken.
Instead, he gave an explanation of the general qualities
that he looked for in jurors:
. . . I am basically looking for people that have
strong roots to the community, that have substan-
tial investment in living in the city[.] . . .
I look to the fact if they are homeowners, that
they have lived in a certain community or certain
residence for a number of years.
If they are renters, if they have lived in that
location for a number of years.
The types of jobs they have, how often they have
changed jobs, how long they have had the most
recent job, if they have advanced within the com-
pany that they stayed at for a number of years,
or if they have moved laterally or down.
If they have changed professions from a
more academically oriented profession to a less
academically oriented profession or vice versa.
If they have families, if their families have roots
in the community.
34 No. 10-1434

On the second remand, the trial court found that Taylor
was excused for a race-neutral reason, citing the lack of
information and knowledge about her and because
there were other persons the ASA wanted on the jury.
The Illinois Supreme Court noted that the trial judge
found that the latter was a race-neutral reason and
credited it as a reason for challenging Taylor. The state
supreme court did not believe that this reason was
“clearly pretextual” and, because it sustained the chal-
lenge to Taylor on the other grounds, the court did not
consider it further. Harris II, 647 N.E.2d at 901-02.
The trial court concluded that “[the ASA] was truthful
when he said that there were ‘other jurors that he wanted
on [his] jury’ because . . . Najdowski, Abbott, and [Joseph]
Tomsyck became jurors in this case.” The court added
that it appeared the ASA “was attempting to gain an
educated, older, conservative, more stable juror.” But the
court erred in comparing Taylor to Najdowski, Abbott,
and Tomsyck. They were selected as the first panel and
sworn in as jurors at the end of the first day of trial.
Taylor, as the trial court noted, was among the first
8 venirepersons questioned the morning of April 24,
1984, the second day of trial. Thus, Najdowski, Abbott, and
Tomsyck already had been chosen and sworn as jurors
before Taylor was even questioned. The exercise of a
peremptory strike against Taylor would have no effect
on whether they would be on the jury; they already were.
It would have been appropriate to compare Taylor to
the jurors who were under consideration at the same
time as she: Woodard, Tony Galovic, Claudia Conway,
Soo Gyang, Meldena Ley, Harold Deitche, Eva Morales,
No. 10-1434 35

Christine Riley, Lucille Johnson, Richard Gray, and
Myland Craig. Some of them, such as Gray, Conway,
Gyang, and Ley, appear to have been what the ASA was
looking for in a juror—older, educated, or stable.
But Taylor also met the description of what the ASA said
he was looking for—people having strong roots to the
community and a substantial investment in living in the
city. Taylor was a 35-year-old nurse, married, and the
mother of 2 children, ages 12 and 15. She had attended
high school in Chicago and had lived there at least
17 years. She had been employed at Mount Sinai Hos-
pital for four years. Before that, she was a stay-at-home
mom who cared for her young children. And she had
worked at Mount Sinai before staying home. The ASA’s
supposed concerns about Taylor in the face of her strong
ties to the community, stable family, and stable employ-
ment are unconvincing and give rise to an inference
of pretext for purposeful discrimination. That inference
has not been rebutted. Thus, it was unreasonable for the
state court to credit the proffered reasons for striking
Taylor.

Betty Simmons
The State’s explanations for striking Betty Simmons
are also unconvincing. The ASA stated that Simmons’s
husband was unemployed and she had indicated that
her son had gone to court because he had been a victim
of an armed robbery and it was not clear to the ASA
“what the disposition of that armed robbery case had
been, nor whether she was satisfied with the treatment
36 No. 10-1434

her son had received.” (Simmons said that her son was
“held up” about 2 years before, authorities found the
person, and her son had to go to court. She also said
that there was nothing about that which would
interfere with her ability to be a fair juror.) The ASA
further stated, “Again, I did not feel I had a great
amount of knowledge regarding Betty Simmons. Her
ties to the community seemed to be tenuous, and in
comparison to the other jurors I was considering at
that time, I did exercise a peremptory challenge.”
The claim that Simmons’s ties to the community
“seemed to be tenuous” is incredible. At the time of the
trial, Simmons was 45 years old. She was married with
2 children (ages 14 and 23). She owned her own home.
She was employed as a staff clerk for Illinois Bell Tele-
phone Company where she had worked for 25 years.
She had attended high school in Chicago. Any claim
that Simmons’s ties to the community seemed tenuous
could not be further from reality. The trial court ne-
glected to make a finding as to Simmons at the Batson
hearing, but on remand, it, too, rejected this proffered
explanation. This utterly incredible explanation is indica-
tive of pretext. Respondent has not offered anything to
rebut the inference of pretext.
The trial court also credited the ASA’s other reasons.
A pretextual reason bears on the plausibility of other
reasons given. See, e.g., Snyder, 552 U.S. at 478; Miller-El II,
545 U.S. at 251-52. The ASA claimed he made a compar-
ative choice among jurors. When Simmons was struck,
8 other venirepersons also were excused and the sec-
No. 10-1434 37

ond panel of jurors was sworn: Richard Gray, Helen
Karwowski, Michael Dolan, and Lois Gregg.2 The
State’s acceptance of Gregg is particularly troubling. The
ASA had stated that he rarely accepted jurors who were
teachers or spouses of teachers. Gregg’s husband was a
teacher (a professor), yet this didn’t motivate the ASA
to strike her. This is evidence tending to prove that
his juror comparison rationale is a pretext for discrim-
ination. See Miller-El II, 545 U.S. at 241.
The ASA also justified the strike of Simmons based
on her husband’s unemployment; the Illinois Supreme
Court found a prospective juror’s spouse’s unemploy-
ment a valid concern that may be considered in exer-
cising a peremptory challenge. See Harris II, 647 N.E.2d
at 902-03. The state court also accepted the explanation
that the prosecutor struck Simmons because of uncertainty
about her son’s armed robbery case and whether she
was satisfied with the treatment her son had received.
See id. It was unreasonable for the state court to accept

2
A portion of the trial transcript indicates that Helen Wojcik
was on the second panel, Tr. R. vol. 2 at 313, which is inconsis-
tent with an earlier portion of the transcript that shows she
had been excused along with 4 other venirepersons and with
the trial judge’s oral and written findings that Helen
Karwowski was on the second panel. Oral Findings of Fact &
Conclusions of Law, entered April 20, 1990, 21; Findings of
Fact & Conclusions of Law Regarding the State’s Explanations
for Excluding 13th, 14th, and 15th Persons from Jury Service,
entered April 23, 1990, 16. The indication that Wojcik was on
the panel was erroneous.
38 No. 10-1434

these other explanations in light of the pretextual ex-
planation that Simmons’ ties to the community seemed
tenuous and in light of all the other circumstances that
tend to prove racial discrimination in the State’s use
of peremptory strikes to exclude nearly all the African
Americans.

Milton Pickett
And then there is Milton Pickett. The ASA testified
that he exercised a strike on Pickett because his wife was
a teacher. The ASA said he rarely accepted jurors that
are teachers or spouses of teachers. He explained that
teachers often are very sympathetic and want to give
people, especially young people, the benefit of the doubt.
He added that teachers often ask questions that “go
beyond the law” and tend to “second guess some of the
strictures that the court places on them.” But the ASA
also said that his “main reason” for striking Pickett was
not because he was married to a teacher, but because
there was a colloquy between the trial judge and Pickett
in which Pickett said he was friends with a lawyer who
was a city councilman (in Evanston, Illinois). The ASA
stated that the judge identified the friend (Fred Alexan-
der), and Pickett seemed impressed that the judge recog-
nized or knew the person he had mentioned. The ASA
continued by saying that he did not know the lawyer-
councilman or his politics and thought it best, based on
this lack of knowledge as well as a lack of information
about the importance of this friend in Pickett’s life, to
exercise a peremptory challenge on Pickett.
No. 10-1434 39

The ASA could have asked the trial judge who was
conducting the voir dire to question Pickett about the
significance of the friend and the friend’s politics, if the
ASA truly was concerned about those matters. The
record reveals that after the judge questioned Pickett and
8 other venirepersons, he called the lawyers up to the
bench and had a conversation off the record. We do not
know what was said, but we do know that immediately
after that conversation, the judge put an additional ques-
tion to 4 of the prospective jurors under consideration.
At the Batson hearing, the trial judge found that although
he generally asked the questions during voir dire, this
wouldn’t preclude either side from tendering ques-
tions, but neither side generally did, and in Harris’s case
specifically, neither side did. The Illinois Supreme Court
observed that asking prospective jurors “further ques-
tions can threaten to taint the entire venire through
the disclosure of sensitive information and can unneces-
sarily lengthen an already long process,” Harris II, 647
N.E.2d at 899, concerns it found legitimate, id. Even so,
the prosecutors had a perfect opportunity to ask the trial
judge to put further questions to Pickett about his lawyer-
councilman friend, but didn’t do so. This may suggest
that this justification for striking Pickett was merely a
pretext for discrimination. See Miller-El II, 545 U.S. at 246
(expressing disbelief about the proffered reason for the
strike and noting that “the prosecution asked nothing
further about the . . . [issue], as it probably would
have done if the [issue] had actually mattered”).
Further evidence of pretext is found in the other justifi-
cations given by the prosecution. The ASA stated that
40 No. 10-1434

Pickett was self-employed as a barber, and while in trial
would have a loss of income. In Snyder, the prosecutor
attempted to justify striking an African American on
the ground that the prosecutor was concerned that
the prospective juror was a student teacher and might
be motivated to find the defendant guilty of a lesser-
included offense so to avoid a penalty phase and
minimize the classes missed. 552 U.S. at 478-80. The
Court found this explanation pretextual for several rea-
sons, including that once the juror was informed that the
dean would “work with” him to make up any missed
student-teaching time, the record did not suggest
that the juror remained concerned about jury service. Id.
at 482-83. Pickett’s juror card indicated that he was em-
ployed by Baxter Travenol and listed his occupation as
“lift driver.” During voir dire, he testified that he drove
a forklift from 7:00 a.m. to 3:30 p.m. and worked as
a barber from 4:00 p.m. to 7:00 p.m. Pickett never ex-
pressed any concern that jury service would cause him
a loss of income or otherwise interfere with his work
obligations, either as a barber or forklift driver. Under
these circumstances, it was unreasonable to credit the
“loss-of-income” reason for striking Pickett.3
And there’s more. The ASA justified his strike of
Pickett by noting that his wife was a teacher. As noted,

3
The trial judge never explicitly credited this as a reason for
striking Pickett. Only the Illinois Supreme Court did, Harris II,
647 N.E.2d at 900, but that court was not in a good position
to judge the prosecutor’s credibility.
No. 10-1434 41

the ASA claimed that he usually did not accept jurors
that are teachers or spouses of teachers and gave a few
reasons why he did not like having them as jurors. These
same reasons should have given him reason to strike
Folan, a teacher, and Najdowski, a former teacher, both
non-African Americans. Respondent argues that Folan
is not an appropriate comparator because the State
had exercised all of its peremptory strikes by the time
she was under consideration. As noted, the Illinois Su-
preme Court so found. See Harris I, 544 N.E.2d at 382.
But, as addressed above, this finding was based on an
unreasonable determination of the facts. Our review of
the record reveals no possible explanation for the
patent inconsistency in the State’s exclusion of African
Americans because they or their spouses were teachers
and its acceptance of non-African American teachers
and former teachers. 4 Thus, the fact that the State didn’t
strike Folan and Najdowski is evidence of pretext and
discrimination. See, e.g., Miller-El II, 545 U.S. at 241 (“[I]f a
[party’s] proffered reason for striking [a prospective
juror of one race] applies just as well to an other-
wise-similar [juror of a different race] who is permitted
to serve, that is evidence tending to prove purposeful
discrimination[.]”).

4
Harris has not argued to us that Najdowski would be an
appropriate comparator to Pickett. Presumably because Harris
didn’t compare Pickett to Najdowski, respondent did not
attempt to explain why such a comparison would be unavail-
ing. Harris did argue, however, that the prosecutor’s expla-
nation that Pickett was stricken because his wife was a
teacher was pretextual.
42 No. 10-1434

The Illinois court failed to consider the fact that the
“teacher reason” offered by the State for striking Pickett
applied equally to Folan and Najdowski. See Harris II,
647 N.E.2d at 900; Harris I, 544 N.E.2d at 383-85. Yet
this was a relevant circumstance that should have
been given due weight by the court in deciding whether
to credit the prosecutor’s proffered reason for striking
Pickett. In the absence of some explanation for this dif-
ference in treatment of like jurors of different races,
the conclusion that the proffered reason was a pretext
for purposeful discrimination becomes inescapable.
The state court unreasonably accepted the race-neutral
reasons for the strike of Pickett.

Christine Riley
And even more telling is the State’s justification for
its peremptory strike against Christine Riley. Harris
challenges the strike of Riley in the context of his claim
under Strickland v. Washington, 466 U.S. 668 (1984), which
set forth principles governing ineffective-assistance-of-
counsel claims. To succeed on such a claim, Harris
would have to show that his counsel’s performance
was deficient—“fell below an objective standard of rea-
sonableness”—and “the deficient performance prej-
udiced the defense”—“there is a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 687-
88, 694. The Illinois Supreme Court resolved the
Strickland claim by concluding that Harris suffered
no prejudice as a result of counsel’s failure to establish
No. 10-1434 43

Riley’s and Shealy’s race. Harris III, 794 N.E.2d at 326-
31. Because the Batson claim involving Riley has merit,
this conclusion is unreasonable.
The ASA justified the strike of Riley as follows:
She lived in the Hyde Park area. She had a
nephew that she indicated had been stabbed
just three months before the time she was being
voir dired, and she told your Honor that she
didn’t know what had happened to her nephew.
She then indicated that it was a fight and she
didn’t seem to know who was charged, or if her
nephew was charged or the other party or parties
had been charged.
It seemed very possible that, after hearing her
response, that her nephew may have been the
considered target of investigation or a charged
individual in that case, and it was not clear to me
whether she was telling the Court and the attor-
neys all she knew about this matter, and I did not
feel that her responses were such that she would
be a juror that I would want sitting at this trial.
He added that Riley “indicated that she was separated
from her husband, and again, her card was incomplete
as to her husband’s employment and other information
regarding her husband. I did not know what the reason
for that was[.]” The ASA expressed concern that there
may have been “some friction or animosity there that
may have made her have some emotional feelings or
may have made her an [un]acceptable juror to consider
this case.”
44 No. 10-1434

The explanation based on the premise that Riley’s
nephew may have been the target of an investigation or
charged in a criminal case demonstrates pretext and
discriminatory animus. In voir dire, when asked whether
she had any close friends or relative/s who had ever
been the victim of a crime, Riley testified that she had
a nephew who was stabbed about 3 months before in
front of his house on Chicago’s south side. She said that
he was all right but had spent about one week in the
hospital. The prosecutor asked her, “Do you know any-
thing about that, why it happened, or anything of
that nature?” Riley answered, “I don’t know exactly
why. It was a fight. I don’t know exactly what hap-
pened.” When explaining the strike of Riley, as noted,
the ASA said that she “didn’t seem to know who was
charged, or if her nephew was charged or the other
party or parties had been charged” and that “[i]t seemed
very possible that . . . her nephew may have been the
considered target of investigation or a charged individual
in that case.”
Yet nothing Riley said during voir dire reasonably
suggested that her nephew had been charged or investi-
gated as a result of having been stabbed. She wasn’t
even asked whether he or anyone else was charged.
She was asked only about the stabbing and why it oc-
curred. And, she was asked whether someone close
to her had ever been a victim of a crime. That the ASA
jumped to the conclusion that Riley’s nephew may
have been charged as an offender, but did not ap-
pear to even consider that possibility when non-African
American venirepersons, Richard Gray, Maureen Ring,
No. 10-1434 45

Lois Gregg, Michael Dolan, and Norma Peacock, said a
family member had been a crime victim, is quite telling.
From this racially disparate assumption about criminal
responsibility, discriminatory intent is clear.
The trial judge found that the explanation that Riley
was struck because she lived in “the community of
Hyde Park” and was separated from her husband were
race-neutral reasons for excluding her. The Illinois Su-
preme Court upheld the crediting of the “Hyde Park”
reason but did not address the separation. See Harris III,
794 N.E.2d at 327-28. Nor did it address the ASA’s as-
sumption that Riley’s nephew may have been charged.
That assumption bears heavily on the plausibility of
these other reasons offered to justify Riley’s exclusion.
And the ASA’s concern that because of her separa-
tion from her husband, Riley may have some friction or
animosity that gave her emotional feelings or made her
otherwise unacceptable is implausible. There is no evi-
dence in the record that Riley was experiencing
emotional feelings that made her unable to serve as a
juror. Without such evidence, it was unreasonable to
credit this explanation.
The trial judge’s decision to credit the prosecutor’s
reasons for striking Riley involved an unreasonable
determination of the facts. Most troubling, the judge
failed to consider what the prosecutor’s race-based as-
sumption that Riley’s nephew may have been charged
shows about his intent. The State’s remarkable pattern
of strikes against African Americans bears on the plausi-
bility of the other reasons offered to justify the strike
46 No. 10-1434

of Riley as well. The Illinois Supreme Court’s decision
to reject the Batson claim as to Riley also was based on
an incomplete evaluation of the reasons given and an
incomplete assessment of the totality of the circum-
stances. Thus, we must conclude that the state court
made an unreasonable determination of the facts in
light of the evidence presented in accepting any of the
reasons offered as justification for the strike of Riley.
That said, the state court unreasonably determined that
Harris failed to show prejudice as a result of Batson coun-
sel’s failure to establish Riley’s race. If counsel had estab-
lished Riley’s race, consideration of the State’s strike
against Riley could have proved a Batson violation.
To sum up, the state court’s credibility findings are
clearly contradicted by the record and it was unrea-
sonable for the court to credit the prosecutor’s race-
neutral explanations for striking several African American
prospective jurors. The pattern of strikes against African
Americans gives rise to an inference of discrimina-
tion. The State proffered implausible and pretextual justi-
fications for the strikes. And a comparative juror
analysis shows that some of the State’s proffered reasons
for striking African Americans applied equally to similar
non-African Americans whom the State accepted as
jurors, which tends to prove purposeful discrimination.
We are aware that Snyder cautions that a retrospec-
tive comparative juror analysis based on an appellate
record has the potential to be misleading when the
alleged similarities were not asserted at trial because
consideration of the alleged similarities may have
No. 10-1434 47

shown that the jurors were not really comparable. 552
U.S. at 483. As our discussion above demonstrates, how-
ever, we have taken great care in drawing comparisons,
still keeping in mind that prospective jurors need not be
identical in all respects for a comparison to be probative.
See Miller-El II, 545 U.S. at 247 n.6 (“potential jurors are
not products of a set of cookie cutters”). And we note
that respondent has not argued that Folan was an inap-
propriate comparator to Woodard, Stearn, and Pickett
because they possessed traits that made her more
desirable as a juror. See Appellee Br. 28 (asserting a side-
by-side comparison of Woodard with Folan was inap-
propriate because the “State had no opportunity to
strike Folan”), id. at 30 (arguing Folan was not a proper
comparator to Stearn because “the State had no opportu-
nity to strike her”), id. at 31 (making the same argument
with regard to Pickett). Furthermore, the comparative
juror analysis is only one aspect of the totality of the
circumstances that compels our conclusion that Harris
has proved purposeful race discrimination in the jury
selection.
We agree that the strikes against Lisa Lucas, Emma
Alexander, and Edward Shealy are also quite troubling.
Demeanor-based explanations for a strike are par-
ticularly susceptible to serving as pretexts for discrim-
ination. The evidence that other African Americans
were excluded because of their race bears heavily on the
plausibility of the reasons offered for striking these pro-
spective jurors. But Harris has carried his burden of
proving a Batson violation and so further consideration
of these strikes is unnecessary. Also unnecessary is con-
sideration of Harris’s Brady claim.
48 No. 10-1434

III. Conclusion
The Illinois state court’s conclusion that the State did
not purposefully discriminate in exercising peremptory
strikes on African Americans was based on an unrea-
sonable determination of the facts. 5 We are well aware
that the crimes with which Harris was charged occurred
almost 30 years ago. But “the passage of time is not a
basis for overlooking the prosecutors’ violations of the
Equal Protection Clause.” Richardson v. Hardy, No. 00 C
6425, 2012 WL 850732, at *35 (N.D. Ill. Mar. 13, 2012). The
district court’s judgment is V ACATED and this case is
R EMANDED to the district court with instructions to grant
the writ unless the State elects to retry Harris within
120 days.

5
At oral argument, we inquired whether Harris could be
sentenced to death if he prevailed on his writ and was re-
tried. We asked Harris’s counsel to discuss the matter with
him and advise the court whether Harris wishes to go forward
with his claim despite any such risk. In People v. Morris, 848
N.E.2d 1000 (2006), the Illinois Supreme Court held that the
former governor’s clemency orders precluded the state from
seeking the death penalty in the event of retrial. Thus, it
appears that Harris could not be given the death penalty if
retried. And his counsel has informed us in writing that even
if a death sentence could be imposed following retrial,
Harris wishes to pursue his writ requesting the state court
to release him or retry him.

5-23-12