U.S. v. Rutledge

• Decision Date: 08 August 2011
• Docket Number: No. 10–2734.,10–2734.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Anthony RUTLEDGE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

648 F.3d 555

UNITED STATES of America, Plaintiff–Appellee,

v.Anthony RUTLEDGE, Defendant–Appellant.

No. 10–2734.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 14, 2011.Decided Aug. 8, 2011.

Doris L. Pryor (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.William E. Marsh, Juval O. Scott (argued), Attorneys, Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant–Appellant.Before BAUER, WOOD, and HAMILTON, Circuit Judges.WOOD, Circuit Judge.

At the jury selection preceding Anthony Rutledge's criminal trial, the prosecutor used peremptory challenges to strike the only two African–American members in the venire. Suspecting that these actions violated the Equal Protection Clause, Rutledge's attorney objected to the strikes using the three-step procedure established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

This appeal focuses solely on Batson's third step, which requires the district court to make a finding of fact regarding the prosecutor's credibility after the prosecutor has offered a race-neutral reason for the strike (step two). Here, the district court denied Rutledge's Batson challenge after saying that the government's reasons were “nonracial,” but without making any finding on the prosecutor's credibility. As we have recently emphasized, “we cannot presume that the prosecutor's race-neutral justification was credible simply because the district judge ultimately denied the challenge.” United States v. McMath, 559 F.3d 657, 666 (7th Cir.2009). The district court must make an independent credibility determination at step three. Because we cannot find the necessary credibility finding in this record, we are unable at this stage to make an informed decision about the court's decision to deny the Batson challenge. We therefore remand the case to the district court so that it can fill this void.

I

During the voir dire before Rutledge's trial, the judge conducted a number of individual interviews of the venirepersons. As we have noted, the group included two African–American members, Mr. Powell and Ms. Martin. When asked whether he had any questions relating to his possible service on the jury, Powell responded as follows:

The only thing that I can think of is that only being the other African American in this courtroom, would my views be overruled, seeing that they will think I'm taking his [the defendant's] point on something?

The district judge replied that “there's no room for taking race into account at all,” and Powell immediately said, in response to the court's direct question, that he could be a fair and impartial juror. The voir dire record reveals even less with respect to Martin. She was a business insurance processor; she handled endorsements for auto insurance; and she enjoyed her work. She had no questions for the court, and she affirmed that there was no reason why she could not be a fair and impartial juror. At the conclusion of the interviews, however, the government struck Powell and Martin, which prompted defense counsel's Batson challenge. In response, this exchange followed:

[THE PROSECUTOR]: First, I would state myself that I am African American, for the record; and my basis for striking Mr. Powell is his statement indicating that because he is an African American male, if he was to side with the defendant, if other jurors would listen to him.

I believe that this statement demonstrates a level of going against his credibility and also his bias toward the defendant without hearing any evidence at this point.

THE COURT: What about [Ms. Martin]?

[THE PROSECUTOR]: Your Honor, for [Ms. Martin], during the voir dire, [Ms. Martin] appeared agitated and also frustrated during voir dire.

THE COURT: Anything else you would like to say?

[DEFENSE COUNSEL]: Judge, I guess those are racially neutral reasons. I didn't see any hesitation or agitation on the part of Ms. Martin. So it's not a credible racially neutral reason.

With respect to Mr. Powell's rationale, he simply raised a legitimate personal question which didn't in any way reflect that he couldn't be a fair juror. It was just a concern that he had. So that's not a legitimate racially neutral reason for striking him.

THE COURT: I heard Mr. Powell say he was worried about the respect he was going to get as a juror. Is that a fair statement?

[DEFENSE COUNSEL]: I think so.

THE COURT: Is that what troubled you?

[THE PROSECUTOR]: What troubled me is he was afraid the jurors would not listen to him if he were to side for the defendant because they wouldn't find him credible because he is an African American male.

THE COURT: I think—I'm having a little trouble with that. I think he's given us his real thought about respect that he might get from other jurors, and I indicated to him that he is entitled to the respect of other jurors I think without equivocation. Then I think he said he was all right with it.

I guess your concern is—his concern was racial, right?

[THE PROSECUTOR]: That's my understanding, Your Honor.

THE COURT: So your concern is racial?

[THE PROSECUTOR]: No, Your Honor. My concern is whether or not this individual can be unbiased in hearing both sides of the evidence before rendering a judgment.

THE COURT: I think that does it then. Those are both nonracial-related reasons. So I'm going to excuse Mr. Powell.

The court did not say why it was also sustaining the objection with respect to Martin. Once the challenges were denied, the case moved to trial, where Rutledge was convicted. This appeal followed.

II

The exclusion of even a single prospective juror on account of race, ethnicity, or gender violates the Equal Protection Clause. Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008); Coulter v. McCann, 484 F.3d 459, 464 (7th Cir.2007). To prove a violation under Batson, “once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination.” Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) ( per curiam ).

At the third step, the “critical question” is the “persuasiveness of the prosecutor's justification for his peremptory strike,” which “comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible.” Miller–El v. Cockrell, 537 U.S. 322, 338–39, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“ Miller–El I ”); see also Snyder, 552 U.S. at 477, 128 S.Ct. 1203. Credibility determinations can be made in many ways, and for that reason we treat the district court's findings at step three as findings of fact, reviewable only for clear error. See Miller–El I, 537 U.S. at 339, 123 S.Ct. 1029 (“Deference is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court to make credibility determinations.”); United States v. Taylor, 509 F.3d 839, 845 (7th Cir.2007). That deference is heightened when a litigant's race-neutral reason for striking a prospective juror involves the juror's demeanor; there is no way for an appellate court to review this sort of intangible, which appears nowhere on our “cold” transcript. Snyder, 552 U.S. at 477, 479, 128 S.Ct. 1203; cf. Klockner, Inc. v. Federal Wire Mill Corp., 663 F.2d 1370, 1375 (7th Cir.1981).

Nevertheless, if there is nothing in the record reflecting the trial court's decision, then there is nothing to which we can defer. See Snyder, 552 U.S. at 479, 128 S.Ct. 1203; Taylor, 509 F.3d at 845. That is why the third step under Batson “ requires the court to weigh the evidence and determine whether the prosecution's nondiscriminatory reason for the strike is credible or if the defense has shown purposeful discrimination.” McCann, 484 F.3d at 465 (emphasis added); see also Miller–El v. Dretke, 545 U.S. 231, 251–52, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (“ Miller–El II ”) (“ Batson ... requires the judge to assess the plausibility of [the prosecution's race-neutral] reason in light of all evidence with a bearing on it.”). Where the proffered race-neutral reason for a strike is limited to the juror's demeanor, “the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Snyder, 552 U.S. at 477, 128 S.Ct. 1203.

The analytical structure established by Batson cannot operate properly if the second and third steps are conflated. Purkett, 514 U.S. at 768, 115 S.Ct. 1769. At the second step, nearly any race-neutral reason will suffice, even those that are arbitrary, irrational, or silly. See id.; McCann, 484 F.3d at 465. It is “not until the third step that the persuasiveness of the justification becomes relevant,” and “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769; see also Coulter v. Gilmore, 155 F.3d 912, 920 (7th Cir.1998); cf. Johnson v. California, 545 U.S. 162, 171, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (explaining that the first two steps govern only the production of evidence later evaluated at step three).

With these basics in mind, the parties have focused primarily on the Supreme Court's decision in Snyder and our later decision in McMath. In Snyder, the Court considered a Batson challenge that had been denied after the prosecutor gave two reasons for the strike of a prospective juror. 552 U.S. at 478, 128 S.Ct. 1203. The first was his “nervous” demeanor, and the second was his student...