Seventh Circuit Week in Review: Racial Discrimination in Jury Selection and Improper Closing Arguments
The Seventh Circuit had three new opinions in criminal cases last week. The most interesting was United States v. McMath (No. 08-2316), which featured the Seventh Circuit’s most extended discussion to date of Snyder v. Louisana, 128 S. Ct. 1203 (2008). In my view, the Supreme Court’s decision in Snyder represented a real break-through in the Court’s on-again/off-again efforts to eliminate racial bias from the jury-selection process. In McMath (which was, coincidentally, decided on the exact one-year anniversary of Snyder), the Seventh Circuit seemed to recognize the significance of Snyder and awarded the defendant a remand for further consideration of the racial bias issue in the district court. McMath also included an interesting discussion of questionable closing arguments made by the prosecutor.
McMath’s jury-selection claim centered on alleged racial bias in the prosecutor’s use of peremptory strikes. In Batson v. Kentucky, of course, the Supreme Court made clear that prosecutors are prohibited from removing potential jurors from a case on account of their race. Here are the relevant facts from McMath:
There were two African-Americans on the panel from which McMath’s jury was selected, and the prosecutor removed one of them. McMath’s lawyer objected, arguing that there was little information available about the potential juror other than that he was a retired janitor, and there seemed no race-neutral reason to strike him on that basis (“There’s other jurors left on this jury that are retired.”). The prosecutor responded, “Race neutral factor is expression on his face. That’s all I can say. He looked angry and not happy to be here.” McMath’s lawyer replied, “I think pretty much the whole jury looked like that.” Prosecutor: “I disagree. I didn’t see that expression.” My guess is that if the prosecutor did not see some other potential jurors who looked unhappy to be there, she was not looking very hard. In any event, following this colloquy, the judge denied the Batson challenge without explanation.
In order to understand the Seventh Circuit’s analysis in McMath, one must be familiar with the three-step process prescribed by the Supreme Court for Batson claims: (1) the defendant must present a prima facie case of racial discrimination in the exercise of peremptory strikes, (2) the prosecutor must respond with a race-neutral explanation for the challenged strike(s), and (3) the court must decided whether the defendant has carried his burden of proving improper discrimination.
On appeal, the government argued that the defendant failed to carry his step-one burden of making out a prima facie case. However, the Seventh Circuit (per Judge Flaum) indicated the issue was moot because, “at the time of the challenge, the prosecution provided a race-neutral reason and the district court ruled on the Batson challenge.” The message for prosecutors seems to be this: if you want a ruling on the defendant’s prima facie case, you need to get it from the trial judge before offering your race-neutral explanation.
Despite its suggestion that the issue was moot, the Seventh Circuit also indicated that McMath actually did succeed in making out a prima facie case, emphasizing how low the burden was:
[A] defendant need only produce evidence sufficient to permit an inference of discrimination in order to satisfy the first step of the Batson analysis. The test is not rigorous: suspicion even less than “more likely than not” suffices. . . .
Here, the defendant met this threshold. . . . While it is true that it would not have been sufficient for defense counsel merely to point to the stricken juror’s race, defense counsel’s statement that jurors sharing Juror 7’s only other known characteristic, his status as a retiree, had been retained by the prosecution pointed out a relevant circumstance that was sufficient to permit an inference of discrimination . . . .
Since McMath made out a prima facie case, the burden shifted to the prosecution to produce a race-neutral reason. This burden was carried, though, when the prosecution invoked the stricken juror’s demeanor. The trial court was thus required, under step three of the Batson analysis, to determine whether discrimination had been adequately proven. The trial court indicated it found no discrimination, but offered no explanation for this conclusion.
The Seventh Circuit held, however, that Snyder required more than this bare rejection of McMath’s claim. In Snyder, as in McMath, the prosecutor relied on a stricken juror’s demeanor for a race-neutral explanation. Demeanor is a troubling as an explanation, though, because it is so subjective and ephemeral. The trial judge may have difficulty recollecting for himself or herself how a prospective juror looked during voir dire, while the appellate court has no ability at all to review this type of evidence. This is not to say that demeanor is necessarily a false race-neutral explanation, but it is to say that demeanor will generally provide a safe and convenient out for a prosecutor who lacks a good race-neutral explanation. Snyder recognized the problem, and indicated that trial judges should make clear findings as to demeanor issues when they are raised in the Batson context.
The Seventh Circuit thus relied on Snyder in remanding McMath for explicit fact-finding on the Batson issue: “Snyder makes clear that a summary denial does not allow us to assume that the prosecution’s reason was credible; rather, the district court’s silence leaves a void in the record that does not allow us to affirm the denial.”
Although agreeing with McMath’s Batson argument, the Seventh Circuit rejected his claim that he was entitled to a new trial because of improper arguments made by the prosecutor to the jury. Reading carefully, though, one finds some real criticism of the prosecutor’s conduct:
- “the prosecutor should not have commented directly on the officers’ credibility”
- “it was improper for the prosecutor to say that the officers would lose their jobs if they lied”
- “the prosecutor probably should not have said that she ‘knew’ McMath did not want to admit his guilt”
- “even if the comments shaded into impermissible commentary”
In denying McMath’s claim of prosecutorial misconduct, the court emphasized that — due to the failure of McMath’s lawyer to object at the time to the prosecutor’s questionable comments — it was using the deferential plain error standard of review. In effect, it seems that the mistake of the defendant’s lawyer excuses the mistakes of the government’s lawyer.
The gentle treatment in McMath of the prosecutor’s “improper” statements contrasts sharply with the direct, personal criticism leveled by the Seventh Circuit at a prosecutor just one week earlier in Farinella, which I blogged about here. I’ll let readers judge for themselves whether the prosecutor’s improper statements in Farinella really were so much more egregious than the challenged statements in McMath.
The other two cases from last week merit less extended discussion.
In United States v. Groves (No. 07-2227), the court (per Judge Sykes) held that suppression of evidence was not required where it was obtained after a stop based on an anonymous tip. The Seventh Circuit has had a number of anonymous tip cases recently. (I noted one just last week here.) In Groves, the court observed, “Although an anonymous tip is generally insufficient to support an investigative stop, there was more supporting this stop than just an anonymous tip.” A wrinkle here is that the police dispatcher incorrectly informed the responding officers that there was an outstanding warrant for Groves’ arrest. However, the court relied on the Supreme Court’s very recent decision in Herring v. United States, 129 S. Ct. 695 (2009), to hold that “a negligent mistake by police personnel regarding the existence of a warrant does not require application of the exclusionary rule.”
The Groves court also affirmed the reasonableness of the sentence, 240 months, notwithstanding a sentencing guidelines range of 151-188 months.
In United States v. Shah (No. 07-1306), the court (per Judge Posner) reversed the defendant’s conviction for violating 18 U.S.C. § 2314, which prohibits the transportation of people across state lines for purposes of executing or concealing a scheme to defraud. Shah’s conviction was apparently based on his dispatching a courier across state lines in order to further his fraudulent scheme. The Seventh Circuit ruled, however, that the statute requires that an intended victim be the person who is transported. It was not enough for the government to rely on the transportation of an agent of the defendant’s.
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