60 F.3d 383 | 7th Cir. | 1995
Lead Opinion
Anthony Holder has appealed the denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus, challenging the district court’s finding that the prosecutors in Holder’s jury trial did not exercise peremptory challenges in violation of the principles established by United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). For the reasons set forth below, we Affirm the dismissal of the habeas corpus petition.
I. BACKGROUND
A. Procedural History
In 1985, defendant Anthony Holder (“Holder”), a black male, was charged in Will County, Illinois with the murder of Christopher Zouganelis, a white male. Jury selection in Holder’s case in the Circuit Court of Will County began on June 5,1985 with eight blacks originally selected to be on the venire. After completed voir dire, three of the black venirepersons were excused for cause and the remaining five were stricken through the prosecutors’ use of peremptory challenges. During the prosecutors’ exercise of the per-emptories, the defense counsel notified the court that the prosecution was excluding all of the blacks from the jury. However, the prosecution did not offer any justification for the exercise of the peremptory challenges, and the court did not order any explanation. Ultimately, an all-white jury was empaneled. At the close of trial, the defendant was convicted of murder and sentenced to natural life imprisonment.
Holder appealed his conviction to the Illinois Appellate Court asserting that the State’s use of peremptory challenges to exclude all blacks from the jury violated his
Holder then filed a petition for post-conviction relief asserting that his counsel’s failure to properly object to the discriminatory use of peremptories constituted ineffective assistance of counsel in violation of the Sixth Amendment. The court relied upon the standards set forth in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in determining whether Holder’s counsel should have objected to the state’s use of peremptories.
The Illinois Appellate Court affirmed the dismissal of the post-conviction petition agreeing that Holder had failed to prove ineffective assistance of his trial counsel. People v. Holder, 213 Ill.App.3d 109, 156 Ill.Dec. 744, 571 N.E.2d 528 (3d Dist.1991) (hereinafter “Holder II”). Notably, the appellate court also reviewed the trial record of the voir dire, and concluded that there were “plainly apparent” racially neutral reasons for the prosecutor’s challenges of the five black venirepersons. Id. 156 Ill.Dec. at 746, 571 N.E.2d at 530.
Having exhausted his state court remedies, Holder filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 with the United States District Court for the Northern District of Illinois asserting that he was denied a hearing on his jury discrimination claim in violation of Batson. The district court denied the habeas petition stating that because Holder had waived his right to a Batson hearing at trial, he could not assert the claim on habeas review. Thereafter, Holder appealed to this court, which remanded the case to the district court for a determination on the merits of the Batson claim.
District Judge Charles P. Kocoras found that Holder had established a prima facie case of discrimination under Batson. Because a prima facie case was established, Judge Kocoras referred the matter to Magistrate Joan M. Lefkow with instructions to conduct an evidentiary hearing to determine if the prosecutors could demonstrate proper justifications for challenging the black veni-repersons.
B. Magistrate’s Findings
Prosecutors Patton and Miller, relying upon the aid of the voir dire transcript and their contemporaneously-taken notes, testified at the Batson hearing as to their justification for exercising a peremptory challenge to excuse Ms. Reed from the venire. Both Patton and Miller stated that their notes did not reflect the race of any venireperson. Patton recalled that in 1983, Ms. Reed’s brother was shot and killed by his wife, but that the Will County State’s Attorney’s Office dropped the charges against the shooter. Patton stated that she believed this incident was vital to Ms. Reed’s ability to serve as a juror in Holder’s trial because the murder had occurred just two years prior to the trial, was a serious crime against a close relative, and involved the Will County State’s Attorney’s office. Patton expressed her concern that “there was a good chance that there would be some animosity towards the State’s Attorney’s Office.”
Miller’s notes also reflected that Ms. Reed’s brother was the victim of a shooting by his wife in Will County. He stated that because it was a Will County shooting, he “felt there may be some animosity towards the prosecutor’s office because no one was prosecuted for the shooting of her brother.”
Q. You also testified that you were concerned that Ms. Reed might harbor ill feelings against the Will County prosecutor’s office because your office dismissed charges against the alleged killer of her brother.
A. That was a concern of mine, yes. I would point out that I recall Ms. Reed was a black woman, and I’d assumed her brother was black. And the victim in the instant case, the Holder shooting, was white. So it was a concern of mine that maybe Ms. Reed would harbor some feelings of*387 selective prosecution, and it was a real concern in that case.
Q. Since she was black?
A. That’s correct.
Q. And that she wouldn’t be able to discharge her duties effectively because of her race?
A. No. That would not have been a concern, not her race. Only as it related to her brother being shot and killed in Will County, the charges being dropped, and then the victim in the instant case being white and the defendant being black. In that specific area, then her race was relevant.10
Magistrate Lefkow believed these reasons given for excusing Ms. Reed constituted a mere pretext for discrimination. She stated, “the record lacks any indication in anything Ms. Reed said or failed to say which would indicate that this concern was well founded.”
Magistrate Lefkow based her opinion mainly on a comparison between Margo Ell-man, a white female selected to serve on the jury, and Ms. Reed. Juror Ellman’s ex-husband had been indicted for mail fraud and her son had been prosecuted for grand larceny by the Will County State’s Attorney’s Office. The case against her son was within two years of the Holder trial and resulted in his serving two years probation. Ms. Ellman responded in voir dire that she felt her son and her ex-husband were treated fairly by the court and the prosecution and that she could be a fair juror in the Holder trial. Magistrate Lefkow expressed that these incidents Juror Ellman had with the law were similar to those of Ms. Reed, yet the prosecutors accepted Juror Ellman’s statement that she could be fair and rejected Ms. Reed’s same assurance. From the prosecutors’ disparate treatment of the potential jurors, the magistrate drew the inference that the State must have believed “that Ms. Reed as a black individual could not be trusted to be fair in the trial of a black defendant.”
Finally, Magistrate Lefkow noted that although the prosecution expressed great concern with Ms. Reed’s incident with the law, they had a seeming lack of interest in the brushes with the law of several of the empaneled jurors. She cited as examples:
1) Juror Patricia Reimer who had been sued by a municipality for running ice cream trucks out of her home;
2) Juror Mary Pelton, whose brother had been arrested for shooting his gun in his yard six years prior to trial; and
3) Juror Glen Meadows who had been arrested fifteen months before the Holder trial in Will County.
Because the prosecution did not ask the same detailed questions of these jurors regarding their brushes with the law as were asked of Ms. Reed, Magistrate Lefkow concluded that the prosecutors’ stated concern about Ms. Reed’s experience was merely a pretext. Accordingly, Magistrate Lefkow issued a report and recommendation on November 24, 1993 concluding that Priscilla Reed was excluded from the jury because of her race.
C. District Court’s Findings
Judge Leinenweber made a de novo finding that the prosecution’s explanation for exercising a peremptory to excuse Ms. Reed from the venire was “clear and specific and set forth legitimate reasons for the actions and was not a pretense for discrimination.”
[i]t was of particularly [sic] significance that the killer of Reed’s brother was not prosecuted, while the government in this ease was not only prosecuting Holder for*388 murder of a white person but was seeking the death penalty.14
The court further noted that the fact that race was considered by Miller in making his decision to strike Ms. Reed did not create a per se Batson violation. Instead, Batson only forbids an attorney from exercising a peremptory against a black venireperson on the belief that the potential juror would be biased in favor of a black defendant, which was not Miller’s concern.
The court reasoned that because the magistrate was not able to view Ms. Reed’s actions at the voir dire, she had no basis for her assertion that the record was void of any statements or actions of Ms. Reed that would support the prosecutors’ concern. The court noted, that the prosecutors, on the other hand, were in such a position to view Ms. Reed as she gave her verbal answers and were entitled to rely upon the intuition which resulted from their first hand observance.
Finally, the court expressed its concern with applying Batson retroactively, stating:
[i]n this case, the prosecutors were required to explain to the court actions taken over 8 years ago at a time the law did not require their actions be justified. The court is impressed by the way the prosecutors were able to articulate lucidly neutral explanations for acting the way they did and that their notes were consistent with the explanations they gave.15
II. DISCUSSION
A. Standard of Review
Ordinarily, a reviewing court gives deference to the findings of a district court regarding whether a Batson violation occurred, and will reverse only those findings that are clearly erroneous. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. Such deference is accorded because under current Batson procedures, the trial court generally conducts the Batson inquiry contemporaneously with the voir dire procedure, and therefore is in the best position to witness the statements of the challenged jurors and to assess the credibility of the prosecutors as they seek to justify the exercise of a peremptory challenge. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). However, this rationale given by the Supreme Court for the use of the clearly erroneous standard is inapplicable to the circumstances in this case, where a magistrate conducted the Batson hearing more than eight years subsequent to the voir dire proceeding. Neither Magistrate Lefkow nor Judge Leinenweber were present at the voir dire proceeding, and therefore did not have the opportunity to observe the demeanor of the members of the venire as they answered the questions posed by the attorneys. Moreover, although Magistrate Lefkow was able to hear the explanations given by the prosecutors at the Batson hearing, she was not in the same position to make credibility determinations as is a trial judge who has the opportunity to observe the responses from the venire and to hear the attorney’s explanation for a peremptory immediately after it is exercised. In fact, the prosecutors admitted that at the time of the Batson hearing, they had little, if any, recollection of the actual voir dire, and found it necessary to testify with aid from the voir dire transcript and from their contemporaneously taken notes. Therefore, since Magistrate Lefkow, Judge Leinenweber, and the members of this panel all have basically been provided with only a cold record from which to determine if a Batson violation occurred at Holder’s jury trial, we find that no deference is warranted under these circumstances. Accordingly, we will conduct a de novo review of the record before us.
B. Batson Analysis
The Supreme Court in Batson set forth an evidentiary framework for assessing whether the exercise of peremptory challenges violates the Fifth Amendment right to equal protection. According to this framework, a defendant can establish a prima facie case of purposeful discrimination by showing: (1) that he was a member of a cognizable racial group; (2) that the prosecutor exercised per
On appeal, the parties do not dispute that the defendant established a prima facie case of discrimination. Instead, the appellant argues that the prosecution did not articulate a race-neutral justification for striking Ms. Reed. After conducting a de novo review of the record as a whole, including the transcripts of the voir dire and the Batson hearing, Magistrate Lefkow’s report and recommendation, and Judge Leinenweber’s opinion below, we agree that the prosecution’s justification for the exercise of its peremptory challenge against Ms. Reed was legitimate and was sufficient under Batson to rebut the defendant’s prima facie case.
A careful examination of the Supreme Court’s opinion in Batson reveals exactly which justifications for exercising perempto-ries upon black venirepersons are prohibited by the commands of the Equal Protection Clause. The Supreme Court explained:
the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.
Id. at 89, 106 S.Ct. at 1719. (emphasis ours).
Ms. Reed was stricken from the venire because of the prosecutors’ concern that a personal incident occurring just two years prior to the Holder trial, might cause her to have animosity towards the Will County State’s Attorney’s Office. Prosecutor Miller testified at the Batson hearing that Ms. Reed’s race was a factor only in so far as it related to the issue of selective prosecution; specifically, that her brother was black and was murdered in Will County, with the prosecution dropping the charges against the black suspect, and that the victim in the Holder case was white, with the prosecution seeking the death penalty against the black suspect. We agree with the district court that “such a juxtaposition was of legitimate concern to the prosecutors.”
Furthermore, the cases relied upon by the appellant to support his belief that the justifications given were forbidden under Batson are clearly distinguishable from the facts of this case. In United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir.1987), the prosecution challenged a juror because “he lived in the [defendant’s] neighborhood — he’s black, too, and he was dressed casually, and I thought he might identify with [the defendant] too much.” We agree with the finding of the Ninth Circuit that the fact that a juror might identify with the defendant is exactly what Batson is intended to prohibit. However, the prosecution in the Holder ease did not
Appellant also relies upon Williams v. Chrans, 957 F.2d 487 (7th Cir.1992), where the reason offered for striking one of the black venirepersons was because she worked in an area primarily dominated by members of the defendant’s street gang, and would likely have contact with those similar to the defendant. Not only is this case factually distinguishable, as Ms. Reed was not excluded because she lived or worked in the same neighborhood as the defendant, but the justification offered in Williams was found by this court to be acceptable under Batson. Id. at 489-490.
According to the Batson framework, since we have found that the prosecution set forth a legitimate justification for the exclusion of Ms. Reed, the burden now shifts to the defendant to prove the existence of purposeful discrimination. Appellant asserts, as the magistrate found, that the prosecutors’ election to strike Ms. Reed but not Juror Ellman reveals sufficient evidence of the prosecutors’ discriminatory intent. However, after conducting our own comparison of Juror Ellman and Ms. Reed, we conclude that the record does not support the inference of discriminatory intent on the part of the prosecutors. The prosecutors’ primary reason for striking Ms. Reed was the concern that she would harbor feelings of selective prosecution against the Will County State’s Attorney’s Office. Juror Ellman’s experiences with the office did not warrant the same concern from the prosecutors. Similarly, the “brushes with the law” of Juror Reimer, Juror Pelton, and Juror Meadows are minor in comparison with Ms. Reed’s experience of having the Will County office drop the charges against the murderer of her brother just two years prior to the Holder trial. Because of these significant differences, we find that the defendant has failed to uncover any convincing evidence that the prosecutors purposefully discriminated against Ms. Reed on the basis of her race. Accordingly, we affirm the district court’s denial of Holder’s petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.
Affirm.
. Because a direct appeal was pending in Holder’s case at the time the Batson decision was rendered, the principles in Batson are applied retroactively to cover the issues in this case. See, Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).
Basically, the Supreme Court in Batson held that the Equal Protection Clause forbids the government from exercising peremptory challenges to remove blacks from the venire based solely upon their race or on the assumption that black jurors will not be able to be impartial against a black defendant. Batson, 476 U.S. at 89, 106 S.Ct. at 1719.
. Because Batson was not decided until 1986, the court correctly held Holder's counsel to the standards set forth in Swain, which was the law regarding jury discrimination through the use of peremptories at the time of Holder's jury trial in 1985.
. After the magistrate issued the report and recommendation, Judge Kocoras recused himself pursuant to 28 U.S.C. § 455(a) and the case was reassigned to Judge Harry D. Leinenweber.
. Because Holder does not appeal the determination that Mr. Quarles was properly excused, we will limit our inquiry to the decision regarding Ms. Reed.
. Transcript of Batson hearing conducted on October 21, 1993 at page 20.
. Id. at 46.
. Id.
. Id. at 47.
. Id. at 54.
. Report and Recommendation of Magistrate Lefkow dated November 24, 1993 at page 26.
. Id. at 27.
. Judge Leinenweber's Memorandum Opinion and Order dated April 12, 1994 at page 5.
. id.
. Id. at 7-8.
. Judge Leinenweber's Memorandum Opinion and Order dated April 12, 1994 at page 5.
Concurrence in Part
concurring in part and dissenting in part.
I believe that under Batson, the difficulties are more serious and the analysis more complex than indicated by the majority. In light of the clear existence of one impermissible motive behind the prosecution’s strike of Ms. Reed, I believe that remand is warranted to determine whether Reed would have been empaneled in the absence of this motive.
It is appropriate to think about the prosecution’s reasons for striking Reed as involving two separate motivations, though they may have been articulated as one. First, the prosecutors were concerned because Reed was closely related to the victim of an unpro-secuted crime (suggesting that she might be biased toward the prosecutor’s office). One of the prosecutors, Ms. Patton, in fact stated that this was her only reason for excluding Reed. This is rather clearly a legitimate race-neutral reason of the type that insulates a prosecutor’s action from challenge.
Second, however, race motivated the prosecutors. Mr. Miller stated that race was a concern “as it related to her brother being shot and killed in Will County, the charges being dropped, and then the victim in the instant case being white and the defendant being black.” They were thus concerned that because Ms. Reed was Africaov-Ameri-can she might harbor animosity toward a prosecutor’s office that prosecuted a crime against a Caucasian victim (in fact asking for the death penalty), yet had failed to prosecute that same crime when the victim was African-American. This is precisely what Batson prohibits — the striking of a juror because of a presumed racial identification with the defendant. 476 U.S. at 97, 106 S.Ct. at 1723 (impermissible to engage in assumption that jurors “would be partial to the defendant because of their shared race”). While the prosecutors did not necessarily assume Reed would be partial to the defendant simply because she shared his race, they did believe that race might be a motive in her decision-making-namely, they worried that she would be influenced by racial sympathy insofar as a crime against an African-Ameri
The majority’s analysis, which lumps the two factors motivating the prosecutors together, should not thus succeed in insulating the strike of Reed from challenge. The prosecutors’ stated reasons for striking Ms. Reed must be understood as two separate reasons. The fact of Reed’s relation to the victim of an unprosecuted crime has nothing to do with her race. But when her race is considered under selective prosecution, that consideration suggests that the prosecutors believed that any antagonism she might have harbored toward the prosecutor’s office could have been enhanced or aggravated. The concerns enunciated by the prosecution are separate.
The question, therefore, is whether the existence of a criterion specific only to Reed (her relationship to a victim of an unprose-euted crime) is sufficient to overcome an impermissible motive (the assumption that because Reed was African-American she would be concerned about selective prosecution).
The Second Circuit announced the remand rule in Howard v. Senkowski, 986 F.2d 24 (2d Cir.1993). There, the prosecutor admitted to having impermissible motivations (namely, to assuming that African-American jurors would be more sympathetic to African-American defendants), but claimed that the jurors would have been struck anyway. The Second Circuit held that “[ojnce the claimant has proven improper motivation, dual motivation analysis is available to the person accused of discrimination to avoid liability by showing that the same action would have been taken in the absence of the improper motivation that the claimant has proven.” 986 F.2d at 27. The court therefore remanded for the purpose of making this determination. I believe that we must proceed by mixed motive analysis here.
It is no answer, contrary to the majority’s opinion, to suggest that Batson only prohibits strikes occurring “solely” on the basis of race. The Second Circuit rather resoundingly rejected the logic of this argument in Howard, 986 F.2d at 28-29. The Second Circuit refused to attach significance to Bat-son ’s use of the adverb “solely,” and proceeded by the more standard equal protection analysis — namely, when two motives seemed to .have influenced the decision-maker, that party has the right to prove that the same decision would have been made even in the absence of the impermissible motive.
Under this mixed motive analysis, Holder has a strong argument that remand is appropriate insofar as it would enable the district court to consider the issue precisely in light of the standard that I have discussed. Although the district court has already grappled to a degree with this problem (it found that the Caucasian jurors’ “brushes” with the law were much less significant than that of Reed), precise findings would be more help-
I therefore respectfully dissent to the extent indicated.
. An argument has been made that the mere existence of one impermissible reason tainted the decision-making process and violated Batson. See Wilkerson v. Texas, 493 U.S. 924, 110 S.Ct. 292, 107 L.Ed.2d 272 (1989) (denying petition for certiorari) (Marshall, J., dissenting; joined by Brennan, J.) (suggesting that mixed motive analysis is inappropriate in the framework of per-emptories).
