In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1194
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
LEMUREL E. WILLIAMS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14‐cr‐00159 — J.P. Stadtmueller, Judge.
____________________
ARGUED SEPTEMBER 22, 2015 — DECIDED APRIL 26, 2016
____________________
Before FLAUM, WILLIAMS, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. Lemurel Williams was convicted
of being a felon in possession of a gun. Williams’s first ar‐
gument on appeal is that the prosecution unconstitutionally
rejected potential jurors because of their race. We need not
decide that issue because we agree with Williams’s second
argument: a new trial is needed because the totality of the
2 No. 15‐1194
circumstances regarding the jury’s verdict was impermissi‐
bly coercive.
I. BACKGROUND
Milwaukee police officers saw Williams walking in the
middle of the road and talking on a cell phone at 1:30 in the
morning. When they asked him to stop, he fled, running
through a yard and jumping over two fences. He was caught
and his cell phone and a gun were recovered near the fences
he had leaped. He was tried and convicted for knowingly
possessing a gun despite his prior felony conviction. See 18
U.S.C. §§ 922(g)(1), 924(a)(2).
A. Potential Race Discrimination In Jury Selection
During jury selection, the prosecution used peremptory
strikes against two African‐American potential jurors. After
the jury was sworn, defense counsel challenged the prosecu‐
tion’s strikes as unconstitutional race discrimination. The
prosecution gave race‐neutral explanations for its strikes, but
it did so eleven days later (rather than promptly), in writing
(rather than orally), and in secret (rather than sharing its rea‐
sons with the defense). The judge accepted the proffered
reasons and rejected the defense’s challenge. Williams chal‐
lenges that decision on appeal.
B. Potential Juror Coercion During Deliberation
After three hours of deliberating, the jury returned a
guilty verdict, which was read aloud in court. At defense
counsel’s request, the jury was polled—that is, jurors were
individually asked, “Was this and is this your verdict with
regard to the defendant, Lemurel E. Williams?” Juror 1 re‐
sponded “no.” It seems the judge did not hear that response
because the polling continued, and when all other jurors re‐
No. 15‐1194 3
sponded “yes,” the judge dismissed the jury as if the case
was over. Before the jurors left, defense counsel asked for a
sidebar. After the sidebar, the jurors were re‐polled.
Again, Juror 1 rejected the guilty verdict and all other ju‐
rors affirmed it. Without taking a break or discussing the
situation with the lawyers, the judge gave the following in‐
struction:
Members of the jury, based upon the repoll of
the jury, I’m going to instruct you to return to
your jury room and renew your deliberations
since it is necessary that each juror agree, that
is, your verdict must be unanimous.
The court security officer will return the jury to
the jury deliberation room, and a new verdict
form will be prepared; and they will be in‐
structed to continue with their deliberations
until they have reached a unanimous verdict.
Ten minutes later, the jury sent the judge a note. The top
of the note read, “We apologize, we misunderstood the ques‐
tion that was presented to each juror.” That portion was
signed by a juror (not Juror 1). The bottom of the note read,
“We have the verdict.” That portion was signed by a differ‐
ent juror (again, not Juror 1).
The jury returned to the courtroom and the judge ex‐
plained that he learned “through word from Mr. Baumann,
the bailiff, that the juror who indicated that the verdict was
not her verdict had misunderstood” the poll question. The
judge continued, “So before we proceed further, Ms. Harris,
Juror Number 1, do I have it right that you misunderstood
[the question], and the verdict that was read was and is your
4 No. 15‐1194
verdict?” Juror 1 responded, “Yes, I misunderstood the ques‐
tion.” At that point, neither a new verdict nor the prior ver‐
dict was read aloud. The jurors were, however, polled about
the verdict that had been read earlier, and they all said that
the earlier verdict was their individual verdict. The judge
stated that “the misunderstanding has been cleared” and
dismissed the jury. Williams argues that he was denied a fair
trial because Juror 1 was coerced into joining the guilty ver‐
dict.
II. ANALYSIS
A. Batson Jury Selection Process
Williams argues that the prosecution violated the rule of
Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits strik‐
ing potential jurors because of their race. The Batson rule is
an important one that protects not only the particular crimi‐
nal defendant, but also potential jurors, the wider communi‐
ty, and our system of justice. See J.E.B. v. Ala. ex rel. T.B., 511
U.S. 127, 140 (1994); Powers v. Ohio, 499 U.S. 400, 405–07, 411
(1991); Winston v. Boatwright, 649 F.3d 618, 622, 626 (7th Cir.
2011).
The government asks us to hold that a Batson challenge is
untimely if made after the venire is dismissed and the jury is
sworn (as in this case). That rule is sensible; the dismissal of
the venire or the swearing of the jury is the presumptive
deadline for making Batson challenges. It is the district
judge’s responsibility to ensure that parties have a fair op‐
portunity to raise such challenges; we will not treat a chal‐
lenge as forfeited if the opportunity to object was lacking.
District judges must ensure that the timing and sequence of
exercising strikes, excusing the venire, swearing in jurors,
No. 15‐1194 5
and beginning the trial do not preclude timely Batson chal‐
lenges. To permit reasoned challenges—and avoid unrea‐
soned ones—a break could be taken after strikes are exer‐
cised, giving the attorneys time to analyze the strikes. Before
excusing the venire, the judge could explicitly ask the parties
whether they have any Batson challenges. We are sure that
acceptable alternatives exist, so we lay down no mandatory
procedures, but we remind judges to think carefully about
the process.
Judges do not bear the responsibility alone—parties must
pay attention to process. If a Batson challenge is untimely, it
may do little good to complain on appeal that the untimeli‐
ness resulted from the judge’s jury‐selection process, for
which the parties bear no fault. Fault aside, the lack of a
timely challenge might render the record inadequate for a
probing appellate review. Cf. United States v. Willis, 523 F.3d
762, 767 (7th Cir. 2008). So if the process does not permit
timely challenges, parties should object to the process itself.
Next, if a peremptory strike is challenged and the strik‐
ing party proffers a race‐neutral explanation, the manner in
which the explanation is given is important. “Batson and its
progeny direct trial judges to assess the honesty—not the ac‐
curacy—of a proffered race‐neutral explanation.” United
States v. Stephens, 514 F.3d 703, 711 (7th Cir. 2008). And “the
best evidence of the intent of the attorney exercising a strike
is often that attorney’s demeanor.” Thaler v. Hayes, 559 U.S.
43, 49 (2010) (quoting Snyder v. Louisiana, 552 U.S. 472, 477
(2008); Hernandez v. New York, 500 U.S. 352, 365 (1991)). So
race‐neutral explanations should be given in a way that lets
the judge observe the attorney’s demeanor and assess his or
her honesty. The process used here—receiving the explana‐
6 No. 15‐1194
tions in writing (instead of orally) and eleven days after the
strike (instead of promptly)—was flawed.
Also troubling is that the district judge accepted the gov‐
ernment’s explanations in secret. There was no reason for
that. The government’s reasons were given after trial con‐
cluded, so there was no risk of disclosing strategy. Even in a
more typical case, secret explanations are strongly discour‐
aged. While we have held that secret proceedings do not nec‐
essarily violate the Constitution, we stressed that they should
be the exception—”an adversarial procedure” should be
used “whenever possible.” United States v. Tucker, 836 F.2d
1
334, 340 (7th Cir. 1988).
The procedures used by the district court for evaluating
the Batson challenge were problematic. Nonetheless, we do
not reach the merits of the issue because, as discussed next,
Williams is entitled to a new trial on separate grounds.
B. Circumstances Surrounding Jury Verdict Were Im‐
permissibly Coercive
a. Legal Standard and Standard of Review
“Any criminal defendant … being tried by a jury is enti‐
tled to the uncoerced verdict of that body.” Lowenfield v.
Phelps, 484 U.S. 231, 241 (1988). Coercion occurs when jurors
“surrender their honest opinions for the mere purpose of re‐
turning a verdict.” United States v. Blitch, 622 F.3d 658, 668
(7th Cir. 2010). To evaluate potential coercion we look at the
1
In Davis v. Ayala, 135 S. Ct. 2187 (2015), the majority assumed, and the
dissent would have held, that it violates the Constitution to keep race‐
neutral explanations secret from the other side. Id. at 2197, 2210–11. Giv‐
en the procedural posture, the case did not lead to a relevant holding.
No. 15‐1194 7
totality of the circumstances. Lowenfield, 484 U.S. at 250;
Blitch, 622 F.3d at 669–70. We focus on the situation facing
the juror, not the intent of the party or the judge whose ac‐
tions created that situation. Blitch, 622 F.3d at 668; see also
Leake v. United States, 77 A.3d 971, 975 (D.C. 2013) (“An in‐
quiry into jury verdict coercion is made from the perspective
of the jurors.”). We cannot know for certain whether Juror 1
favored conviction all along and merely misunderstood the
poll question, in which case she was not coerced. She was
not asked to explain how she misunderstood the question.
We have no quarrel with that, given the sometimes unclear
line between asking jurors whether the verdict form contains
a mistake and improperly asking about the deliberative pro‐
cesses. See generally Fed. R. Evid. 606(b); United States v. Di‐
Domenico, 78 F.3d 294, 302 (7th Cir. 1996). But to analyze
whether the circumstances were impermissibly coercive, we
consider the possibility that Juror 1 understood the poll
question correctly and still rejected the verdict. See Brown v.
United States, 59 A.3d 967, 976 (D.C. 2013) (the “evaluation of
jury coercion focuses on probabilities, not certainties”).
Williams moved for a mistrial on the ground of jury coer‐
cion, and that motion was denied. We review the denial of a
motion for a mistrial for an abuse of discretion. United States
v. Mannie, 509 F.3d 851, 856 (7th Cir. 2007). But there is more
to the standard of review in this case. Although we evaluate
potential coercion by looking at the totality of the circum‐
stances, the government argues that some of those circum‐
stances should receive less scrutiny because Williams failed
to object at trial.
In particular, the government argues that the judge’s
supplemental jury instruction should be reviewed only for
8 No. 15‐1194
plain error because Williams did not immediately object.
While the failure to object often results in plain‐error review,
the circumstances of this case do not fit the mold. Specifical‐
ly: (1) the judge gave the instruction without consulting
counsel, so they did not know what he would say; (2) then,
without hearing from or addressing counsel, the judge im‐
mediately recessed to attend to a civil trial over which he
was simultaneously presiding; and (3) the defense moved for
a mistrial as soon as court resumed, but the jury had already
reached its verdict. In short, we cannot confidently say that
there was an opportunity to object and fix any error. Cf.
United States v. Speed, 811 F.3d 854, 858–59 (7th Cir. 2016)
(plain‐error review inappropriate if the defendant lacked an
adequate opportunity to object).
In contrast, the plain‐error standard is appropriate for
our review of the jury polls because Williams did not object,
and there is no indication that he lacked an opportunity to
do so. Under the plain‐error standard, we ask whether the
error was “obvious.” United States v. Haldar, 751 F.3d 450, 456
(7th Cir. 2014). The plain‐error inquiry also asks whether the
error “affected the defendant’s substantial rights” and “seri‐
ously affected the fairness, integrity, or public reputation of
the judicial proceedings.” Id. But our overall inquiry—
whether there was too great a risk of juror coercion—looks at
the “totality of the circumstances,” and most of the circum‐
stances here are not subject to plain‐error review. So we do
not address the last two aspects of the plain‐error standard
independently as to the jury polls alone. We note that if the
totality of the circumstances presented too great a risk of ju‐
ror coercion, then Williams’s rights and the fairness, integri‐
ty, and reputation of the judicial proceedings were affected.
No. 15‐1194 9
b. Analysis
We begin with the polls. Long ago, the Supreme Court
held that it is always reversible error to ask a divided jury to
reveal its numerical division (e.g., ten jurors on one side and
two on the other). Brasfield v. United States, 272 U.S. 448
(1926). But polling a jury that is believed to be unanimous is
different—a poll rarely reveals division; its purpose and
usual effect is to confirm unanimity. See, e.g., Lyell v. Renico,
470 F.3d 1177, 1184 (6th Cir. 2006) (emphasizing the differ‐
ence between a post‐verdict poll and an inquiry made to a
jury known to be divided). It is true that polling always risks
revealing the jury’s precise division (because the final juror
could reject the verdict after all others affirm it), but criminal
defendants are entitled to a poll, Fed. R. Crim. P. 31(d), and
Williams’s lawyer asked for one. So Williams cannot com‐
plain about the mere fact that a poll was conducted. That
said, the manner in which a poll is conducted matters, and
the polling in this case risked more coercion than necessary.
Once Juror 1 rejected the verdict, the verdict could not
stand; polling the remaining jurors was pointless. See, e.g.,
Lyell, 470 F.3d at 1183 (noting that, after the third‐to‐last juror
rejected the verdict, there was “little point to continuing to
poll the last two jurors”). Williams argues that it was worse
than pointless, it was coercive because it needlessly revealed
that Juror 1 was the lone dissenter, putting pressure on her
to switch her vote.
In United States v. Carraway, 108 F.3d 745 (7th Cir. 1997),
defendant John Carraway was tried jointly with four co‐
defendants. The jury returned a guilty verdict as to all five
defendants. When polled, the seventh juror affirmed the
verdict as to the other defendants but rejected it as to Carra‐
10 No. 15‐1194
way. Id. at 750. After conferring with the lawyers, the judge
resumed polling, but only as to the other defendants—no
subsequent juror was asked about Carraway. Id. After con‐
tinued deliberations, the jury unanimously found Carraway
guilty. Id. at 751. On appeal, Carraway argued that the con‐
tinued polling was coercive. Rejecting that argument, we
noted that “[t]he weight of authority suggests that when the
trial judge continues to poll the jury after one juror disagrees
with the verdict, reversible error occurs only when it is ap‐
parent that the judge coerced the jurors into prematurely
rendering a decision and not merely because the judge con‐
tinued to poll the jury.” Id. at 751.2 In comments that sharply
distinguish Carraway from the present case, we noted that:
Carraway points to no evidence of coercion
other than the court’s decision to resume poll‐
ing. In that regard, we note that when Judge
Stiehl decided to resume polling of the other
five jurors, he wisely had them asked solely
about the verdicts against the other four de‐
fendants, not Carraway. His decision to pro‐
ceed in that fashion averted further disclosure
2 That is the rule in six circuits. United States v. Penniegraft, 641 F.3d 566,
579–80 (4th Cir. 2011); Lyell v. Renico, 470 F.3d 1177 (6th Cir. 2006); United
States v. Gambino, 951 F.2d 498, 502 (2d Cir. 1991); United States v. Fiorilla,
850 F.2d 172, 176 (3d Cir. 1988); Amos v. United States, 496 F.2d 1269,
1272–73 (8th Cir. 1974); United States v. Brooks, 420 F.2d 1350, 1353 (D.C.
Cir. 1969). The Eleventh Circuit holds that continued polling is “per se
error” under Brasfield because it reveals the numerical division of the
jury “for no reason at all.” United States v. Spitz, 696 F.2d 916 (11th Cir.
1983). As discussed below, this case involves coercive circumstances be‐
yond polling alone, so we need not decide whether a bright‐line rule, as
in Spitz, should apply in this circuit.
No. 15‐1194 11
as to the numerical division of the jury (see
[Brasfield]), and relieved the objecting juror of
any additional pressure that she might have
experienced had further polling as to Carraway
confirmed in open court that she was the lone
dissenter. Id. at 751.
Had the judge here followed the “wise” approach de‐
scribed in Carraway—that is, had he stopped polling once
Juror 1 rejected the verdict—the likelihood of coercion
would have been far less substantial.3 Instead, he polled the
entire jury, revealing its precise division and putting pres‐
sure on Juror 1 as the publicly known lone dissenter. We are
confident that the judge did not intend to pressure anyone (it
appears he did not hear Juror 1’s response), but the judge’s
intentions are not at issue. Blitch, 622 F.3d at 668. Indeed, the
judge’s innocent failure to hear Juror 1 led to additional coer‐
cive actions: dismissing the jury (which could convey that
the judge was eager to end the case4) and publicly polling
the entire jury a second time. See Lowenfield, 484 U.S. at 251
(“The court here polled the jury not once, but twice, increas‐
ing whatever coercive effect a single poll would have had.”)
(Marshall, J., dissenting). So the manner of polling risked co‐
ercion to a greater extent than necessary. Given that the con‐
tinued polling served no purpose at all, departed from the
3 Other courts have followed the “wise” approach, terminating a poll as
soon as a lack of unanimity was revealed. E.g., United States v. Thomas,
791 F.3d 889, 897–90 (8th Cir. 2015); Leake, 77 A.3d at 976; United States v.
Carrasquilla‐Lombada, No. 8:14‐cr‐394, 2015 U.S. Dist. LEXIS 48258, at *7–8
(M.D. Fla. Apr. 13, 2015).
4 A juror might have thought the judge was eager to end the case because
the jurors knew the judge was simultaneously presiding over a civil trial.
12 No. 15‐1194
approach we approved in Carraway, and happened twice,
the error was “plain” and “obvious.”
Immediately after Juror 1 twice rejected the verdict, the
judge instructed the jurors “to continue with their delibera‐
tions until they have reached a unanimous verdict.” Stand‐
ing alone, that instruction might be viewed as less coercive
than “You have got to reach a decision in this case,” an in‐
struction that the Supreme Court held was overly coercive.
Jenkins v. United States, 380 U.S. 445, 446 (1965). But we must
look at the totality of the circumstances, including the fact
that the instruction came at a very sensitive moment—
immediately after Juror 1 was identified as the lone dissent‐
er. See Blitch, 622 F.3d at 670 (“At the time of that direction,
apparently only a single vote stood between the defendants
and conviction, and care was especially important.”).
In Lowenfield v. Phelps, the Supreme Court analyzed a par‐
ticular combination of a jury poll and subsequent instruc‐
tion. In that case, when the jury had trouble reaching a ver‐
dict, the judge asked each juror whether he or she thought
that further deliberations would be helpful. Eleven said yes
and one said no. 484 U.S. at 234–35. The judge told the jurors
to continue deliberating, and gave the following instruction:
When you enter the jury room it is your duty
to consult with one another to consider each
other’s views and to discuss the evidence with
the objective of reaching a just verdict if you
can do so without violence to that individual
judgment.
Each of you must decide the case for yourself
but only after discussion and impartial consid‐
No. 15‐1194 13
eration of the case with your fellow jurors. You
are not advocates for one side or the other. Do
not hesitate to reexamine your own views and
to change your opinion if you are convinced
you are wrong but do not surrender your hon‐
est belief as to the weight and effect of evi‐
dence solely because of the opinion of your fel‐
low jurors or for the mere purpose of returning
a verdict. Id. at 235.
The Supreme Court noted that some “combinations of
supplemental charges and polling” could be coercive, but
held that the particular combination in Lowenfield was not.
Id. at 241. The Court relied in part on the fact that the jury’s
division was revealed “not as to how they stood on the mer‐
its of the verdict, but how they stood on the question of
whether further deliberations might assist them in returning
a verdict.” Id. at 240. That is not the case here.
Moreover, important to Lowenfield’s holding was the fact
that the neutrally worded instruction was a far cry from the
coercive mandate from Jenkins (“You have got to reach a de‐
cision in this case.”). Lowenfield, 484 U.S. at 239. Indeed, the
Lowenfield instruction bears a striking resemblance to the Sil‐
vern instruction—the instruction given in this circuit when a
jury is deadlocked. The Silvern instruction tells jurors that
they should “make every reasonable effort” to reach the
“goal” of a unanimous verdict, but that they “should not
surrender [their] honest beliefs about the weight or effect of
evidence just because of the opinions of [their] fellow jurors
or just so that there can be a unanimous verdict.” Pattern
Criminal Jury Instructions of the Seventh Circuit 7.03 (2012) (cit‐
ing United States v. Silvern, 484 F.2d 879, 883 (7th Cir. 1973)
14 No. 15‐1194
(en banc)). The comment to the pattern instruction suggests
exclusively giving this instruction “to avoid inadvertently co‐
ercive substitutes.”
The government is right that the Silvern instruction is not
required unless the jury is deadlocked. Willis, 523 F.3d at 775.
But where a district judge instructs a divided jury, a compar‐
ison between the Silvern instruction and the instruction giv‐
en can inform our analysis of potential coercion. See United
States v. Fouse, 578 F.3d 643, 652 (7th Cir. 2009) (“If a district
court deviates from the [Silvern] instruction[], we will re‐
verse if the ultimate instruction given was ‘coercive of una‐
nimity.’”). A comparison here is revealing. The Silvern and
Lowenfield instructions state that a unanimous verdict is the
goal, but they also remind jurors not to surrender their hon‐
est beliefs just to achieve that goal. In contrast, the judge
here said nothing to the jurors about preserving their honest
beliefs. So while we do not hold that the Silvern instruction
was required, a totality‐of‐the‐circumstances analysis cannot
ignore that the well‐known Silvern instruction would have
been less coercive than the instruction given here. See Brown,
59 A.3d at 977 (holding that when an “atmosphere of coer‐
cion exists,” the judge must give an instruction that reminds
jurors not to surrender their honest beliefs).
Just ten minutes after the judge’s instruction, the jury sent
a note saying “we” misunderstood the polling question and
“we” have a unanimous verdict. Strangely, the note was
signed by two jurors but not by Juror 1 (even though only
Juror 1 had rejected the prior verdict). Also strange is an un‐
explained “misunderstanding” in a case that did not involve
multiple defendants, multiple counts, or any possibility of
an inconsistent verdict. We have stated that a supplemental
No. 15‐1194 15
instruction is less likely to have been coercive when the jury
deliberated for a long time after receiving the instruction be‐
fore returning a verdict. E.g., United States v. De Stefano, 476
F.2d 324, 337 (7th Cir. 1973); United States v. Bambulas, 471
F.2d 501, 506 (7th Cir. 1972). Conversely, it is somewhat more
likely that a potentially coercive instruction was in fact coer‐
cive when the jury returns a verdict very quickly after re‐
ceiving the instruction. See Lowenfield, 484 U.S. at 240 (“We
are mindful that the jury returned with its verdict soon after
receiving the supplemental instruction, and that this sug‐
gests the possibility of coercion.”); Smith v. Curry, 580 F.3d
1071, 1083–84 (9th Cir. 2009); United States v. Yarborough, 400
F.3d 17, 22 (D.C. Cir. 2005); United States v. Webb, 816 F.2d
1263, 1267 (8th Cir. 1987).
Finally, when the jury returned to the courtroom, the
judge stated in open court that he had “learned” that Juror 1
specifically had misunderstood the polling question (even
though that is not what the jury’s note says). He then public‐
ly identified Juror 1 by name and asked, “Ms. Harris, Juror
Number 1, do I have it right that you misunderstood [the
question], and the verdict that was read was and is your
verdict?” (emphasis added). To reject the verdict, Juror 1
would have had to tell the presiding federal judge that he
was wrong—no easy task for a juror, especially one already
enduring coercive circumstances.
We reiterate that we are confident the judge did not in‐
tend to coerce anyone. But the focus is on the juror and we
hold that the totality of the circumstances—the combination
of the polls, the fact of a lone dissenter, the instruction, the
content and timing of the jury’s note, and the form of the
judge’s direct question—was impermissibly coercive, even if
16 No. 15‐1194
none of those circumstances standing alone would have
been. So the judgment cannot stand.
III. CONCLUSION
We REVERSE the judgment of the district court and
REMAND for a new trial.