United States v. Williams

• Decision Date: 26 April 2016
• Docket Number: No. 15–1194.,15–1194.
• Citation: 819 F.3d 1026
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Lemurel E. WILLIAMS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

819 F.3d 1026

UNITED STATES of America, Plaintiff–Appellee,

v.Lemurel E. WILLIAMS, Defendant–Appellant.

No. 15–1194.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 22, 2015.

Decided April 26, 2016.

Benjamin W. Proctor, Attorney, Scott J. Campbell, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Jessica M. Lindemann, Attorney, Barnes & Thornburg LLP, Indianapolis, IN, for Defendant–Appellant.

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 argument 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 circumstances regarding the jury's verdict was impermissibly 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 prosecution'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 reasons with the defense). The judge accepted the proffered reasons and rejected the defense's challenge. Williams challenges 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 responded "no." It seems the judge did not hear that response because the polling continued, and when all other jurors responded "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 jurors affirmed it. Without taking a break or discussing the situation with the lawyers, the judge gave the following instruction:

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 instructed 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 question 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 different juror (again, not Juror 1).

The jury returned to the courtroom and the judge explained 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 verdict?" Juror 1 responded, "Yes, I misunderstood the question." At that point, neither a new verdict nor the prior verdict 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 verdict.

II. ANALYSIS

A. Batson Jury Selection Process

Williams argues that the prosecution violated the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)

, which prohibits striking potential jurors because of their race. The Batson rule is an important one that protects not only the particular criminal defendant, but also potential jurors, the wider community, and our system of justice. See J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 140, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ; Powers v. Ohio, 499 U.S. 400, 405–07, 411, 111 S.Ct. 1364, 113 L.Ed.2d 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 opportunity to raise such challenges; we will not treat a challenge 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, and beginning the trial do not preclude timely Batson challenges. To permit reasoned challenges—and avoid unreasoned ones—a break could be taken after strikes are exercised, 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 untimeliness 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 striking 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 accuracy—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. Haynes, 559 U.S. 43, 49, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010) (quoting Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ; Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (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 explanations 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 government's explanations in secret. There was no reason for that. The government's reasons were given after trial concluded, so there was no risk of disclosing strategy. Even in a more typical case, secret explanations are strongly discouraged. While we have held that secret proceedings do not necessarily 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 334, 340 (7th Cir.1988)

.¹

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 Impermissibly Coercive

a. Legal Standard and Standard of Review

"Any criminal defendant ... being tried by a jury is entitled to the uncoerced verdict of that body." Lowenfield v. Phelps, 484 U.S. 231, 241, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988)

. Coercion occurs when jurors "surrender their honest opinions for the mere purpose of returning a verdict." United States v. Blitch, 622 F.3d 658, 668 (7th Cir.2010). To evaluate potential coercion we look at the totality of the circumstances. Lowenfield, 484 U.S. at 250, 108 S.Ct. 546 ; 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 actions created that situation. Blitch, 622 F.3d at 668 ; see also Leake v. United States, 77 A.3d 971, 975 (D.C.2013) ("An inquiry 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 processes. See generally Fed.R.Evid. 606(b) ; United States v. DiDomenico, 78 F.3d 294, 302 (7th Cir.1996). But to analyze whether the circumstances were...