United States v. Jimmie L. Wilson

BOWMAN, Circuit Judge,

dissenting, joined by JOHN R. GIBSON, FAGG, and WOLLMAN, Circuit Judges.

The opinion of the Court holds clearly erroneous the district court’s finding that the prosecutor provided a racially neutral, nonpretextual explanation for striking Brooks, a black venireman. I respectfully dissent.

Fairly stated, and as accepted by the district court, the prosecutor’s explanation for striking Brooks is that Brooks’s statement that he did not know either defendant Wilson or his initial co-defendant Willie Weaver lacked credibility, since Brooks, Wilson, and Weaver all had substantial connections with Lexa, a small rural community outside of Helena, Arkansas; Brooks was approximately 59 years old and had lived in Lexa for many years; and defendant Wilson was a well-known activist in this small community. In addition, the prosecution was informed by the Department of Agriculture agent assigned to the case as an investigator that Wilson had made several statements to the effect that he had friends on the jury panel or that friends had contacted members of the panel. The prosecution’s concern about improper contacts was heightened by experience in other cases. As one of the prosecutors testified, “My concern about [Brooks] was the possibility that some of Mr. Wilson’s friends would contact Mr. Brooks down there in that community. We have seen that happen before in certain cases and that was the concern I had and I was definitely for striking Mr. Brooks.” (Tr. 177-78).

Finally, but importantly, the prosecution was aware of racial strife in the Lexa area, and therefore believed that Agnes Ginn, a white venirewoman who also lived in Lexa, would not likely be contacted by Wilson’s friends. The prosecution viewed Lexa as a “close-knit community” (Tr. 213) with a long history of “problems down there between the races.” (Tr. 194). Thus the prosecution did not suspect that the defense would tamper with a white juror from Lexa. (“Mr. Wilson’s friends aren’t— given the situation down in Phillips County —aren’t going to be contacting whites on behalf of Mr. Wilson.”) (Tr. 193). It was against this background that one of the prosecutors testified, in response to a leading question by defense counsel concerning the Lexa area and closer scrutiny of black than white panel members, “I mean, race is just a — race sets it up like being a member of a lodge.” (Tr. 210).

The opinion of the Court yanks the immediately preceding statement out of context, and having done so, proceeds to treat it as though it represented the totality of the prosecution’s explanation for its striking Brooks but not Ginn. Ante at 1124. Ignoring the fact of racial polarization in the Lexa community, the opinion of the Court condemns the prosecutor’s explanation as “a stereotypical racial reason,” and therefore concludes that the prima facie case of discrimination has not been overcome and that the district court’s finding to the contrary is clearly erroneous. Ante at 1124. Our Court’s highly selective reading of the record and the Court’s resulting conclusions are not faithful either to Bat-son or to the established limits on the scope of our review of findings of fact made by a district court.

The constitutional limitation on the use of peremptory challenges bars “purposeful discrimination” against blacks and other cognizable racial groups. Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1722, 90 L.Ed.2d 69 (1986). It “forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black.” Id. at 97, 106 S.Ct. at 1723. Once the defendant makes a prima facie showing, as Wilson has done here,

The prosecutor ... must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.

*1126Id. at 98, 106 S.Ct. at 1724 (emphasis added and footnote omitted). In a footnote at the end of the just-quoted passage, the Batson opinion cites Anderson v. Bessemer City, 470 U.S. 664, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (trial court’s finding on issue of intentional discrimination is a finding of fact), and adds that “[sjince the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21.

In the present case, the district court, having heard the prosecution’s full explanation of its use of peremptory strikes against black veniremen, and having been satisfied as to the truthfulness and the neutral character of that explanation, found that Wilson had not established purposeful discrimination. The district court found as follows:

[T]he focus here is a narrow one: Has the prosecutor provided this Court with a neutral explanation for its exercise of its strikes? It is clear to the Court and the Court so finds that the Government has provided such a neutral explanation. The Court has tried to give the defendant wide latitude in attacking the credibility of those explanations in its efforts to show that they were not the true reasons for the strikes but, in fact, were pretex-tual and that the true reasons were based upon racial considerations.
After hearing all the evidence, the Court is convinced and so finds that Mrs. Cherry and Mr. Jackson exercised the peremptory challenges given to them by law for the very reasons that they testified to in this hearing. It credits their testimony in that regard.
The Court is convinced that those explanations are not pretextual. It is further convinced and so finds that race was not in any way a factor in the exercise— in the decision to exercise those peremptory challenges.
The Court credits the testimony of Mr. Jackson that he and Mrs. Cherry were aware of certain controversies that had occurred in Phillips County that had a tendency to result in racial polarization. They mentioned boycotts and other things in which the defendant, Mr. Wilson, had played some role, some active role. They obtained the list and attempted to research the list. They were made aware of, whether true or not, certain statements that the defendant in substance had indicated that he had friends on the panel or that there were persons on the panel that could be contacted by his friends. This was background to the research that they did. They did contact, as they testified, the police officers, prosecutors, others, and gave them the jury list and asked them to give them their opinion as to the jurors.
As I indicated, they did not investigate just the blacks on the panel. They investigated the entire panel in this regard.
I have made my findings, I believe, and I do not have any doubt that Mrs. Cherry and Mr. Jackson exercised their challenges for the reasons that they stated.

(Tr. 280-82).

The district court’s analysis of Wilson’s claim of purposeful discrimination is entirely consistent with Batson. Batson requires that the prosecutor’s explanation must be “clear and reasonably specific,” it must contain “legitimate reasons” for exercising the challenges, and it must be “related to the particular case to be tried.” 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20. Here, the prosecution was legitimately concerned about jury tampering, and clearly articulated its reasons for disbelieving Brooks’s statement that he did not know the defendants in this case. The court’s finding that the prosecution had not been shown to have engaged in purposeful discrimination clearly reflects the court’s acceptance of the factual proposition that the peremptory challenge of Brooks was not based on a “stereotypical racial reason,” as asserted in the opinion of our Court, but on legitimate concerns for the integrity of the trial jury — concerns grounded on the threat of possible jury tampering, the fact of racial polarization in Lexa, Wilson’s notoriety in Lexa, and the realities of life in that small community.

*1127In holding clearly erroneous the district court’s finding that Wilson failed to establish purposeful discrimination, our Court oversteps its bounds — bounds that the Supreme Court has drawn with unmistakable clarity:

[The clearly erroneous] standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 [89 S.Ct. 1562, 1576, 23 L.Ed.2d 129] (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.

Anderson v. Bessemer City, 470 U.S. at 573-74, 105 S.Ct. at 1511 (1985). Instead of following this clear teaching, our Court has set itself up as the trier of fact in this case. While purporting to accept the district court’s credibility determinations, our Court actually rejects them without admitting that it is doing so. This conclusion is inescapable, because the prosecutors consistently testified that they did not strike any of the black jurors qua blacks, but struck them for other, permissible reasons. The district court credited the testimony of the prosecutors and found that their explanations were racially neutral and not pre-textual. Thus, it is impossible to reverse the district court without overturning its credibility determinations. At the very least, our Court should acknowledge what it is doing and should demonstrate why, unlike the district court, it thinks the prosecutors’ testimony — that they did not strike any black juror simply because the defendant is black — is unworthy of belief.

To sum up, the district court, after an extensive Batson hearing, found that the prosecution had articulated neutral reasons related to the particular case for its peremptory challenge of Brooks, and that these reasons were not pretextual. I cannot agree that these findings are clearly erroneous, and I therefore would affirm the decision of the district court.