{"id":4322,"date":"2009-03-23T13:51:24","date_gmt":"2009-03-23T18:51:24","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=4322"},"modified":"2009-07-03T16:45:58","modified_gmt":"2009-07-03T21:45:58","slug":"seventh-circuit-week-in-review-racial-discrimination-in-jury-selection-and-improper-closing-arguments","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/03\/seventh-circuit-week-in-review-racial-discrimination-in-jury-selection-and-improper-closing-arguments\/","title":{"rendered":"Seventh Circuit Week in Review: Racial Discrimination in Jury Selection and Improper Closing Arguments"},"content":{"rendered":"

\"\"<\/a>The Seventh Circuit had three new opinions in criminal cases last week.\u00a0 The most interesting was\u00a0United States v. McMath <\/em>(No. 08-2316), which featured the Seventh Circuit’s most extended discussion to date of Snyder v. Louisana, <\/em>128 S. Ct. 1203 (2008).\u00a0 In my view, the Supreme Court’s decision in Snyder <\/em>represented a real break-through in the Court’s on-again\/off-again efforts to eliminate racial bias from the jury-selection process.\u00a0 In McMath <\/em>(which was, coincidentally, decided on the exact one-year anniversary of Snyder<\/em>), the Seventh Circuit seemed to recognize the significance of Snyder<\/em> and awarded the defendant a remand for further consideration of the racial bias issue in the district court.\u00a0 McMath <\/em>also included an interesting discussion of questionable closing\u00a0arguments made by the prosecutor.<\/p>\n

McMath’s\u00a0jury-selection claim centered on alleged racial bias in the prosecutor’s use of peremptory strikes.\u00a0 In Batson v. Kentucky, <\/em>of course, the Supreme Court\u00a0made clear that\u00a0prosecutors are prohibited from removing potential jurors from a case\u00a0on account\u00a0of their race.\u00a0 Here are the relevant facts from McMath<\/em>:<\/p>\n

There were two African-Americans on the panel from which McMath’s jury was selected, and the prosecutor removed one of them.\u00a0 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.”).\u00a0 The prosecutor responded, “Race neutral factor is expression on his face.\u00a0 That’s all I can say.\u00a0 He looked angry and not happy to be here.”\u00a0 McMath’s lawyer replied, “I think pretty much the whole jury looked like that.”\u00a0 Prosecutor: “I disagree.\u00a0 I didn’t see that expression.”\u00a0 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.\u00a0 In any event, following this colloquy, the judge denied the Batson <\/em>challenge without explanation.<\/p>\n

In order to understand the Seventh Circuit’s analysis in McMath<\/em>, one must be familiar with the three-step process prescribed by the Supreme Court for Batson <\/em>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.<\/p>\n

On appeal, the government argued that the defendant failed to carry his step-one burden of making out a prima facie case.\u00a0 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 <\/em>challenge.”\u00a0 The message for prosecutors seems to be this: if you want a ruling\u00a0on\u00a0the defendant’s prima facie case, you need to get it\u00a0from the trial judge before<\/em> offering your race-neutral explanation.<\/p>\n

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:<\/p>\n

[A] defendant need only produce evidence sufficient to permit an inference of discrimination in order to satisfy the first step of the Batson <\/em>analysis.\u00a0 The test is not rigorous: suspicion even less than “more likely than not” suffices. . . .<\/p>\n

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 . . . .<\/p><\/blockquote>\n

Since McMath made out a prima facie case, the burden shifted to the prosecution to produce a race-neutral reason.\u00a0 This burden was carried, though, when the prosecution invoked the stricken juror’s demeanor.\u00a0 The trial court was thus required,\u00a0under step three of the Batson <\/em>analysis, to determine whether discrimination had been adequately proven.\u00a0 The trial court indicated it found no discrimination, but offered no explanation for this conclusion.<\/p>\n

The Seventh Circuit held, however, that\u00a0Snyder<\/em> required more than\u00a0this bare rejection of McMath’s claim.\u00a0 In Snyder<\/em>, as in McMath,<\/em> the prosecutor relied on a stricken juror’s demeanor for a race-neutral explanation.\u00a0 Demeanor is a troubling as an explanation, though, because it is so subjective and ephemeral.\u00a0 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.\u00a0 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.\u00a0 Snyder <\/em>recognized the problem, and indicated that trial judges should make clear findings\u00a0as to demeanor issues when they are raised in the Batson <\/em>context.<\/p>\n

The Seventh Circuit thus relied on Snyder <\/em>in remanding McMath <\/em>for explicit fact-finding on the Batson <\/em>issue: “Snyder <\/em>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.”<\/p>\n

Although agreeing with McMath’s Batson <\/em>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.\u00a0 Reading carefully, though, one finds some real criticism of the prosecutor’s conduct:<\/p>\n