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STYLES TAYLOR and KEON THOMAS, Defendants-Appellants. Nos. 05-2007, 05-2008, 09-1291

This case returns to us again on the issue of the prosecutor’s use of a peremptory strike against an African-American member of the jury pool. Styles Taylor and Keon Thomas, both African-American, were convicted of robbing and murdering the owner of a gun store in Hammond, Indiana. See 18 U.S.C. §§ 924(c) & (j), 1951. The victim was white.

During jury selection, the defendants challenged the government’s use of peremptory strikes against several African-American jurors. See Batson v. Kentucky, 476 U.S. 79 (1986). The district court denied the Batson challenges, accepting the government’s proferred nonracial reason for the strikes.

Twice we have remanded the case to the district court for further explanation of whether the prosecutor’s stated reason was credible with respect to one juror in particular. See United States v. Taylor, 509 F.3d 839, 841 (7th Cir. 2007) (“Taylor I”); United States v. Taylor, 277 F. App’x 610, 612-13 (7th Cir. 2008) (“Taylor II”).

After our second remand, the district court held an evidentiary hearing and issued a lengthy decision again crediting the prosecutor’s explanation for the strike, which had expanded to include multiple new nonracial justifications.

The defendants contend in this latest appeal that the scope of the inquiry on remand should have been limited to explaining the original reason offered during voir dire, not adding new ones. We agree. The Supreme Court held in Miller-El v. Dretke, 545 U.S. 231, 252 (2005) (“Miller-El II”), that the validity of a strike challenged under Batson must “stand or fall” on the plausibility of the explanation given for it at the time, not new post hoc justifications.

Because it is not possible to separate the permissible from the impermissible support for the court’s Batson determination, we must vacate and remand for retrial.

I. Background

During jury selection, the prosecutor used peremptory strikes to exclude five African-American members of the jury pool.

The strike at issue here involved an African-American juror named Heshla Watson. During voir dire, the prosecutor asked Watson whether she would be able to impose the death penalty on a non-shooter. Watson replied that she would not be able to impose the death penalty on a non-shooter, and she repeated that response when the question was asked again. Defense counsel then asked Watson if she could follow the law; she replied that she would follow the law as instructed and would take into account all the factors she was instructed to consider. The prosecutor moved to strike Watson for cause based on her reservations about imposing the death penalty on a non-shooter. The district court denied this motion. The prosecutor then used a peremptory strike to remove her from the venire.

On appeal we affirmed the judgment in most respects but ordered a limited remand for the district court to supplement the record with its rationale for rejecting the Batson challenge to the government’s use of a peremptory strike to remove Watson from the jury pool. Id. at 841, 851. Based on the voir dire record, we could “discern no material difference between Watson and [a certain white juror] with respect to their views on the non-shooter issue—the sole reason the government supplied for its use of a peremptory strike against Watson.” Id. at 844. On remand the district judge explained that the prosecutor’s rationale for the strike—that Watson categorically rejected the death penalty for a non-shooter— appeared to be credible.

On appeal a second time, we remanded again, specifically identifying a missing link in the district court’s decision: The court had “provide[d] no credibility determination as to the critical issue, which is why the prosecutor would excuse an African-American potential juror based on the answers to the non-shooter question, but would not excuse a similarly-situated white juror for that same reason.” Taylor II, 277 F. App’x at 612. We explained that an evidentiary hearing was required so that the court could question the prosecutor about his motivation for the strike.

At the hearing the government took the opportunity to expand on its rationale for striking Watson, advancing seven new reasons beyond her response during voir dire to the non-shooter question. The seven new reasons were: (1) Watson’s answers on her juror questionnaire showed that she was reluctant to impose the death penalty; (2) other responses to questions during voir dire also suggested that she disfavored the death penalty; (3) she would not identify as closely with the victim, who had served in the military, as would other jurors who had military experience or family members in the military; (4) she likely would not side with the government because her niece and nephew were former police officers who had left their positions after only a year of service; (5) she favored looser gun control; (6) she was less likely to believe testimony from an accomplice; and (7) she had not discussed how she would weigh different circumstances in a defendant’s upbringing when considering whether the death penalty should be imposed.

In a 34-page opinion, the district court again credited the government’s nonracial reasons for striking Watson.

II. Analysis

The use of a peremptory strike to remove a potential juror solely because of his or her race violates the Equal Protection Clause. Batson, 476 U.S. at 91; United States v. Willis, 523 F.3d 762, 766 (7th Cir. 2008). The familiar Batson analysis proceeds in three steps: (1) the defendant makes a prima facie case of discrimination; (2) the government provides a race-neutral explanation for the peremptory strike; and (3) the court decides whether the defendant has established that the government’s stated reason is pretext for discrimination. Batson, 476 U.S. at 94-98; Bennett v. Gaetz, 592 F.3d 786, 791 (7th Cir. 2010).

The focus of this case has been on Batson’s third step—more specifically, the credibility of the prosecutor’s race-neutral explanation for striking prospective juror Watson. Miller-El v. Cockrell, 537 U.S. 322, 338-39 (2003).

This required the trial court to assess the credibility or honesty of the prosecutor’s race-neutral rationale. Lamon v. Boatwright, 467 F.3d 1097, 1101-02 (7th Cir. 2006). “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” Miller-El II, 545 U.S. at 241. We review for clear error; to reverse we must have a “firm and definite conviction that a mistake was made.” Taylor I, 509 F.3d at 843; United States v. Hendrix, 509 F.3d 362, 370 (2007).

The defendants argue that the district court erred by considering the additional, new reasons the prosecutor offered at the evidentiary hearing conducted on the second remand. They maintain this was impermissible bolstering, and if the court had limited its inquiry on remand to the reason originally offered at voir dire—Watson’s answer to the non-shooter question— then pretext has been established.

In Miller-El II the Supreme Court considered whether a trial court must confine itself to the initial reasons offered in support of a peremptory strike when a Batson challenge is first raised.

There, during voir dire, the government had originally defended its use of a strike against a black juror based on the juror’s views about the death penalty and rehabilitation. Miller-El II, 545 U.S. at 243. But after the defense showed that this reason was based on a misdescription of the juror’s testimony, the prosecutor came up with a different reason for the strike; the district court found the new reason credible, and the Fifth Circuit affirmed. Id. at 237, 245-46.

The Supreme Court noted the “pretextual timing” of the prosecutor’s second reason and said it “would be difficult to credit the State’s new explanation, which reeks of afterthought.” Id. at 246. The Court held that “a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.” Id. at 252.

Accordingly, Miller-El II instructs that when ruling on a Batson challenge, the trial court should consider only the reasons initially given to support the challenged strike, not additional reasons offered after the fact. Id. at 246-52; see also Holloway v. Horn, 355 F.3d 707, 725 (3d Cir. 2004) (noting that “where a prosecutor makes his explanation for a strike a matter of record, our review is focused solely upon the reasons given”); Turner v. Marshall, 121 F.3d 1248, 1253 (9th Cir. 1997) (giving no weight to reasons offered by the prosecution after Batson hearing because they were not part of the prosecutor’s explanation at the hearing).

In this case, when the Batson challenge was made, the only reason offered by the prosecutor to justify striking Watson was her response to the non-shooter question. As such, on remand the court should have limited its inquiry and analysis to exploring that very question.

Accepting new, unrelated reasons extending well beyond the prosecutor’s original justification for striking Watson amounts to clear error under the teaching of Miller-El II, and the government’s reliance on these additional reasons raises the specter of pretext.

Our decision in Hendrix is not to the contrary; in that case, the “add on” race-neutral reasons were offered at the time of the initial Batson challenge, not after the fact. Hendrix, 509 F.3d at 367. That’s obviously not the case here.

It’s not possible to parse the district court’s decision, separating the permissible from the impermissible reasons supporting the court’s credibility finding. Accordingly, we must vacate the judgments and remand for a new trial.