Thompson v. Altheimer & Gray

• Decision Date: 19 April 2001
• Docket Number: No. 00-2884,00-2884
• Citation: 248 F.3d 621
• Parties: (7th Cir. 2001) Rhodda Thompson, Plaintiff-Appellant, v. Altheimer & Gray, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 621

248 F.3d 621 (7th Cir. 2001)

Rhodda Thompson, Plaintiff-Appellant, v. Altheimer & Gray, Defendant-Appellee.

No. 00-2884

In the United States Court of Appeals For the Seventh Circuit

Argued February 21, 2001

Decided April 19, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 4319--Morton Denlow, Magistrate Judge.

Before Posner, Kanne, and Diane P. Wood, Circuit Judges.

Posner, Circuit Judge.

The plaintiff brought suit against her employer under Title VII of the Civil Rights Act of 1964, charging racial discrimination. The case was tried, the jury returned a verdict for the defendant, and the plaintiff appeals, arguing that a juror named Leiter should have been struck for cause. If the plaintiff is right, she is entitled to a new trial without having to show that Leiter's presence on the jury caused the jury to side with the defendant. Denial of the right to an unbiased tribunal is one of those trial errors that is not excused by being shown to have been harmless. Gray v. Mississippi, 481 U.S. 648, 668 (1987); Grancorvitz v. Franklin, 890 F.2d 34, 41 (7th Cir. 1989); Fietzer v. Ford Motor Co., 622 F.2d 281, 286 (7th Cir. 1980); Dyer v. Calderon, 151 F.3d 970, 973 and n. 2 (9th Cir. 1998) (en banc).

But what of the plaintiff's failure to use any of her three peremptory challenges to strike Leiter? She says that she used up her peremptory challenges on jurors whom she considered even less likely to favor her cause than Leiter was. This acknowledgment might seem to imply--since the plaintiff is not contending that any of those jurors had to be stricken for cause--that she can't really think that Leiter was biased; for if Leiter was biased and those other three were not, surely the plaintiff would have used a peremptory challenge to get rid of Leiter first. That doesn't follow. Bias is only one factor in deciding whether to challenge a juror. A lawyer might be utterly convinced that a member of the jury venire would vote against his client no matter what the evidence showed, and yet his belief might be based on a hunch that he could not articulate as a ground for a challenge for cause. He might be more eager to strike that juror than one who had an evident bias (though the judge hadn't been convinced of this), for he might think he could overcome the hurdle posed by that bias more readily than he could persuade the stubborn but not demonstrably biased juror.

A plaintiff may have a duty to use a peremptory challenge to remove a juror whom the judge correctly or incorrectly has failed to remove for cause, in which event a plaintiff who fails to use a peremptory challenge for this purpose will have forfeited the right to appeal the denial of the challenge for cause. In Ross v. Oklahoma, 487 U.S. 81 (1988), the Supreme Court in a capital-punishment case upheld against constitutional challenge a state rule imposing just such a duty. On the basis of Ross we then held that the loss of a peremptory challenge because the challenge was used to "cure" the judge's error in failing to remove a juror challenged for cause did not impair the right to an impartial tribunal. United States v. Nururdin, 8 F.3d 1187, 1191 (7th Cir. 1993). That became the law of the nation in United States v. Martinez-Salazar, 528 U.S. 304 (2000); see also United States v. Polichemi, 219 F.3d 698, 705-06 (7th Cir. 2000); Walzer v. St. Joseph State Hospital, 231 F.3d 1108, 1111 (8th Cir. 2000). All but Ross are different cases from the present one, however. In those cases the peremptory challenge had been exercised and the biased juror removed. As a result, the jury that decided the defendant's guilt was impartial. But could a defendant preserve the issue of bias simply by failing to use his peremptory challenge to remove the biased juror? Since the use of a peremptory challenge to remove that juror would cure the judge's error, the defendant's failure to use a peremptory challenge to do this might well be thought to make the error a self- inflicted wound, as argued in a concurring opinion in Martinez-Salazar. 528 U.S. at 318-19. The majority opinion, however, suggests a different view--that the litigant can let the biased juror be seated and seek to reverse the adverse judgment (if one results) on appeal on grounds of bias. See id. at 314-17. The suggestion is dictum, and can be questioned as putting the litigant in a heads-I-win-tails-you-lose position: if he wins a jury verdict, he can pocket his victory, and if he loses, he can get a new trial.

But this is not the case in which to consider whether to take on the Supreme Court's dictum, since the defendant is not arguing that the plaintiff's failure to use a peremptory challenge against Leiter prevents the plaintiff from challenging Leiter's presence on the jury. It argues the distinct point that the plaintiff cannot complain about a violation of her statutory right to three peremptory challenges. 28 U.S.C. sec. 1870; see also Fed. R. Civ. P. 47(b). The defendant is of course right. Martinez- Salazar states that securing an impartial jury is one of the intended uses of peremptory challenges, 528 U.S. at 316; see also Walzer v. St. Joseph State Hospital, supra, 231 F.3d at 1111; United States v. Quinn, 230 F.3d 862, 865 (6th Cir. 2000), and hence may be a reason why the statutory allotment is three rather than one or two or none. (Martinez- Salazar was a criminal case, but we cannot think of any difference which that would make.) But the statutory question is a side issue. The important question is whether the plaintiff's constitutional right to an impartial tribunal was infringed. Let us see.

During the voir dire of the jury, the judge asked the members of the venire whether "there is something about this kind of lawsuit for money damages that would start any of you leaning for or against a particular party?" Leiter raised her hand and explained that she has "been an owner of a couple of businesses and am currently an owner of a business, and I feel that as an employer and owner of a business that will definitely sway my judgment in this case." The judge asked her whether "if I instructed you as to what the law is that you would be able to apply the law recognizing that you are a business owner?" To which she replied, "I think my experience will cloud my judgment, but I can do my best." The judge permitted the lawyers also to ask questions of the prospective jurors and Thompson's lawyer asked Leiter, "And you said earlier that you were concerned that your position as a business owner may cloud your judgment. Can you tell me how?" And she replied, "I am constantly faced with people that want various benefits or different positions in the company [what Thompson was seeking from her employer, the defendant, Altheimer & Gray] or better contacts or, you know, a myriad of issues that employers face on a regular basis, and I have to decide whether or not that person should get them." The lawyer then asked Leiter whether she was concerned "that if somebody doesn't get them [benefits sought from their employer] they're going to sue you," and she answered, "Of course." Asked then whether "you believe that people file lawsuits just because they don't get something they want?", she answered, "I believe there are some people that do." In answer to the next and last question, "Are you concerned that that might cloud your judgment in this case?" she said, "I think I bring a lot of background to this case, and I can't say that it's not going to cloud my judgment. I can try to be as fair as I can, as I do every day."

That was the end of the voir dire of Leiter. After refusing to strike her for cause (though urged to do so by the plaintiff's lawyer), and releasing the jurors who had not been selected for the jury (the defendant had also exercised its three peremptory challenges, none overlapping with the plaintiff's), the judge asked the eight remaining jurors, that is, the jurors selected to hear the case, whether they would follow his instructions on the law even if they didn't agree with them and whether they would be able to suspend judgment until they had heard all the evidence. The question was asked to the jurors at large and all either nodded their heads or said yes. The defendant, again perhaps dropping the ball, makes nothing of Leiter's failure at this stage to reiterate her doubts about her ability to exercise an unclouded judgment. The defendant is content to argue that the answers that Leiter gave to the earlier questions by the judge, and the questions by Thompson's lawyer, did not require that Leiter be struck for cause.

Our review of the trial judge's ruling with respect to a challenge for cause is deferential, Salvato v. Illinois Dept. of Human Rights, 155 F.3d 922, 927 (7th Cir. 1998); Pitsonbarger v. Gramley, 141 F.3d 728, 734-35 (7th Cir. 1998); United States v. Vega, 72 F.3d 507, 512 (7th Cir. 1995); United States v. Blom, 242 F.3d 799, 805 (8th Cir. 2001); United States v. Beasley, 48 F.3d 262, 266 (7th Cir. 1995); Wolfe v Brigano, 232 F.3d 499, 502 (6th Cir. 2000), but not completely supine, and it is pertinent to note that no issue of credibility is pre sented. There is no argument that Leiter was not telling the truth. The issue is interpretive: did what she say manifest a degree of bias such that the judge abused his discretion in failing to strike her for cause?

In defense of his ruling, the defendant has come up with only one case, United States v. Ricketts, 146 F.3d 492, 496 (7th Cir. 1998), where we upheld the trial judge's refusal to strike for cause jurors who, in a trial for complicity in a prison riot, said on voir dire that they would tend to believe prison guards over inmates. The defendant says in its brief that we did this even though the jurors in question "never testified to their willingness or capacity to put this tendency aside for the purposes of trial." That is an inaccurate...