A Three-Step Batson Remand Can Permit Previously Withheld Strike Explanations

1. Introduction

This decision addresses the enforcement of Batson protections after an appellate court remands a criminal case for a corrected examination of allegedly discriminatory jury strikes. Its central procedural holding is that a remand directing the district court to conduct the complete three-step Batson inquiry permitted the prosecution to provide an explanation it had withheld during jury selection, when the trial court had rejected the defendants’ preliminary showing of discrimination.

The underlying prosecution involved thirteen Black male defendants and allegations concerning the Bomb Squad gang, including shootings, drug trafficking, and other crimes in Peoria, Illinois. During selection from the first of five prospective-juror panels, the government struck Juror 26, a Black man, and Juror 58, a Hispanic woman. They were the only two non-white prospective jurors on that panel. The jury ultimately seated was entirely white, although the government disputed the adequacy of the record concerning the overall venire’s racial composition.

The defendants challenged both strikes under Batson v. Kentucky, 476 U.S. 79 (1986). Their first appeal established errors in the district court’s analytical process, not a definitive finding that the strikes were discriminatory. Following a limited remand, the district court again rejected the challenges. The present decision affirms that ruling over a substantial dissent concerning waiver, delayed explanations, and the reliability of credibility findings made without an evidentiary hearing.

2. Background and Summary of the Opinion

The original jury-selection proceedings

The district court initially rejected the defendants’ challenge at Batson’s first step. It required proof of purposeful discrimination, treated the absence of a demonstrated discriminatory pattern as significant, and accepted uncertainty about Juror 58’s ethnicity as a reason not to proceed on her exclusion.

The court nevertheless invited the government to explain both strikes. The prosecution supplied four reasons for striking Juror 26 but repeatedly declined to explain Juror 58’s exclusion, maintaining that no explanation was required after the defendants’ failure at step one. The court’s subsequent statement that the explanations for Juror 26 were “race-neutral” did not meaningfully address whether they were genuine.

The first appeal and remand

In United States v. Watkins, 107 F.4th 607 (7th Cir. 2024), the Seventh Circuit identified two fundamental errors. First, the initial burden required only circumstances supporting an inference of discrimination, not proof of discriminatory intent or an established pattern. Second, recognizing that an explanation is facially neutral does not establish its credibility. The court otherwise affirmed the judgment and remanded for the limited purpose of correctly applying all three Batson steps to the two challenged strikes.

On remand, the defendants argued that only step three remained open and objected to an evidentiary hearing. The government requested a hearing. The district court interpreted the mandate to permit reconsideration of all three steps but ultimately resolved the challenge on written submissions.

The decision after remand

The district court found a sufficient preliminary showing concerning Juror 26, but not Juror 58. Nevertheless, it considered the government’s explanations for both strikes and found them credible. The majority affirmed, holding that:

• The remand authorized reconsideration of the entire three-step inquiry.
• Any unresolved error at step one became moot once the government supplied explanations and the district court decided the ultimate discrimination question.
• The explanations for both strikes were facially race-neutral.
• The district court’s findings that the explanations were genuine were not clearly erroneous.
• The government’s earlier refusal to explain Juror 58’s exclusion did not bar consideration of its explanation on this remand.

Judge Jackson-Akiwumi would have ordered a new trial. She regarded the repeated analytical failures, the government’s deliberate withholding of an explanation, and the paper-only credibility assessment as incompatible with effective enforcement of Batson.

3. Analysis: The Precedents and Their Influence

A. The constitutional framework and preliminary showing

Batson v. Kentucky, 476 U.S. 79 (1986)

Batson supplies the governing Equal Protection framework: the challenger first establishes circumstances supporting an inference of discriminatory purpose; the strike’s proponent then supplies a race-neutral explanation; and the court finally determines whether purposeful discrimination occurred. Both opinions rely on its requirement to examine relevant circumstances, but disagree over whether that examination was meaningful here. The majority finds the corrected inquiry sufficient; the dissent considers it undermined by fragmented analysis and delayed explanations.

Johnson v. California, 545 U.S. 162 (2005)

The majority invokes Johnson to explain that an inference is a conclusion drawn from surrounding facts, reinforcing the modest nature of the first-step burden. The dissent emphasizes its discussion of a prosecutor declining to explain a strike: such silence can strengthen an existing inference of discrimination. For the dissent, the case also demonstrates that Batson seeks actual answers, not merely procedural assurances that nondiscriminatory answers exist.

Powers v. Ohio, 499 U.S. 400 (1991)

Powers establishes that a defendant may challenge a discriminatory strike even when the excluded juror belongs to a different race. It therefore undercuts any suggestion that the Black defendants’ challenge to the exclusion of a Hispanic woman was inherently weaker. The dissent additionally draws on the decision’s recognition of jury service as an important form of democratic participation.

Hernandez v. New York, 500 U.S. 352 (1991)

This decision performs three important functions. It makes the preliminary prima facie issue moot after the prosecutor provides a neutral explanation and the trial court rules on intentional discrimination; it defines step two as an inquiry into facial neutrality; and it supports deference to trial-level credibility findings. Its mootness principle allows the majority to avoid conclusively resolving whether the district court again demanded too much concerning Juror 58 at step one.

Purkett v. Elem, 514 U.S. 765 (1995)

Purkett distinguishes facial neutrality from persuasive force. At step two, an explanation need not yet be persuasive or even plausible, provided discriminatory intent is not inherent in it. That low production threshold did not eliminate the separate obligation to examine credibility at step three.

B. Credibility, pretext, and appellate review

Snyder v. Louisiana, 552 U.S. 472 (2008)

Snyder supplies the clear-error standard of review and identifies purposeful discrimination as the ultimate third-step issue. The majority therefore asks whether the district court’s factual findings were clearly mistaken, rather than deciding credibility afresh.

Miller-El v. Cockrell, 537 U.S. 322 (2003)

The majority uses this decision to identify relevant credibility considerations: prosecutorial demeanor, the reasonableness of an explanation, and its connection to accepted trial strategy. The dissent invokes the same authority to stress the importance of observing the attorney who exercised the strike and the danger of explanations distorted by the passage of time. The case thus supports both the majority’s deference and the dissent’s concern about whether the necessary factual foundation existed.

Morgan v. City of Chicago, 822 F.3d 317 (7th Cir. 2016)

Morgan reinforces that assessments of discriminatory intent are fact-intensive and particularly suited to trial judges. It supports the majority’s reluctance to overturn the district court’s findings merely because the record could support competing interpretations.

United States v. Lovies, 16 F.4th 493 (7th Cir. 2021)

The majority relies on Lovies for deferential review: reversal requires a definite and firm conviction that a mistake occurred. The dissent emphasizes its procedural guidance that district courts ordinarily should develop all three steps explicitly, even if they ultimately reject the challenge at an earlier step. That guidance supports judicial control over the inquiry and creation of a complete appellate record.

Lisle v. Welborn, 933 F.3d 705 (7th Cir. 2019)

Lisle explains why the original finding that the reasons were “race-neutral” was insufficient: facial neutrality does not establish honesty. The dissent maintains that the remand still failed to provide a reliable basis for knowing whether the prosecutors were credible, particularly concerning the newly supplied explanation for Juror 58.

Flowers v. Mississippi, 588 U.S. 284 (2019)

A central authority in the dissent, Flowers emphasizes that the question is whether the explanations were the actual reasons for the strikes, rather than pretexts. It also confirms that excluding even one prospective juror for a discriminatory purpose violates the Constitution and that trial judges bear primary responsibility for enforcing Batson.

Foster v. Chatman, 578 U.S. 488 (2016)

The dissent invokes Foster both for the prohibition against a single discriminatory exclusion and for the proposition that shifting explanations may indicate pretext. Here, the government initially relied on the absence of a sufficient racial showing, but later offered strategic confidentiality as an explanation for withholding its reasons. The majority did not find that evolution sufficient to overturn the credibility determination.

C. Previously withheld explanations and waiver

United States v. Watkins, 107 F.4th 607 (7th Cir. 2024)

The earlier appeal controls the scope of the remand. Its instruction to employ the “three-step process” defeats the defendants’ argument that only step three remained available. The majority also treats that instruction as permitting consideration of the government’s first explanation for Juror 58. The dissent agrees that all three steps were open but argues that reopening the steps did not necessarily erase the consequences of the government’s earlier refusal to participate.

United States v. Taylor, 636 F.3d 901 (7th Cir. 2011)

Identified in the dissent as Taylor I, this decision states that courts should consider the reasons initially supplied for a strike, rather than additional reasons offered afterward. The dissent would extend that principle to deliberate silence: a prosecutor who refuses an available opportunity to explain should not receive a later opportunity to construct a justification.

United States v. Brasher, 962 F.3d 254 (7th Cir. 2020)

Brasher declined to consider a justification first advanced on appeal rather than during the district court’s Batson inquiry. The dissent uses it to support contemporaneous accountability. An important factual distinction is that the explanation here was supplied to the district court during an expressly authorized remand, not first to the appellate court.

Miller-El v. Dretke, 545 U.S. 231 (2005)

This authority supports the dissent’s position that prosecutors must stand or fall on their stated reasons, rather than explanations that appear to be afterthoughts. The dissent treats delayed justification as a threat to the reliability of the inquiry and to public confidence in jury selection.

Pitchford v. Cain, 608 U.S. 391 (2026)

As described in the opinion, Pitchford held that a defendant had not waived a step-three rebuttal argument when the trial court failed to provide a sufficient opportunity to make it. The dissent reasons by analogy that a prosecutor who had repeated opportunities to participate, but deliberately declined, should be treated as having waived a later explanation. That extension to prosecutorial silence is the dissent’s proposed application, not a holding adopted by the majority.

D. Collective assessment and evidentiary hearings

United States v. Stephens, 421 F.3d 503 (7th Cir. 2005)

Identified as Stephens I, this case recognizes the suspicious appearance of excluding nearly all persons of color, even when those excluded belong to different ethnic groups. It supports the dissent’s argument that the two challenged strikes should have been considered together at step one, rather than as unrelated exclusions.

United States v. Stephens, 514 F.3d 703 (7th Cir. 2008)

Identified as Stephens II, this later decision reviewed a post-remand Batson determination apparently made on written submissions. The district court here treated that procedural history as implicit approval of proceeding without a hearing. The dissent objects that a court’s failure to address a procedural method does not establish affirmative approval of that method in materially different circumstances.

United States v. Cecil, 615 F.3d 678 (6th Cir. 2010)

Quoted through Lovies, this decision supports explicitly addressing each Batson step and reserving a final ruling until the complete inquiry has been developed. Its significance is practical: a fuller initial record can prevent the delayed reconstruction required here.

Lamon v. Boatwright, 467 F.3d 1097 (7th Cir. 2006)

Cited through Taylor I, this case reinforces that step three concerns the credibility or honesty of the prosecutor’s explanation, not simply whether the explanation sounds neutral.

United States v. Taylor, 277 F. App’x 610 (7th Cir. 2008)

Identified as Taylor II, this decision required an evidentiary hearing to develop the record and permit questioning of the prosecutor. The dissent invokes it as a practical model for resolving a disputed, newly supplied explanation. Its use does not establish that every post-remand Batson inquiry requires live testimony.

United States v. Watkins, No. 18-cr-10036-JES, 2024 WL 4132698 (C.D. Ill. Sept. 10, 2024)

This is the district court’s decision under review, rather than independent appellate precedent. The dissent quotes it to examine the court’s treatment of Juror 58, its acceptance of the government’s strategy explanation, and its reliance on Stephens II to proceed without an evidentiary hearing.

4. The Majority’s Legal Reasoning

A. The mandate reopened the complete inquiry

The majority begins with the language of the prior mandate. A remand for correctly employing the “three-step process” could not reasonably be confined to step three. The district court therefore acted within its authority by reconsidering the preliminary showing and receiving explanations for both strikes.

The more contested question was whether that authority permitted the prosecution’s first explanation for Juror 58. The majority answered yes, emphasizing both the mandate and the absence of a step-two obligation following the original step-one rejection. It did not treat the remand as merely an opportunity to reassess an otherwise closed evidentiary record.

B. Step-one uncertainty did not determine the outcome

The majority acknowledged that the district court might again have demanded too much concerning Juror 58. It nevertheless applied Hernandez: because the prosecutor explained the strike and the district court resolved intentional discrimination, the adequacy of the preliminary showing no longer controlled.

This is not approval of the district court’s separate treatment of the two jurors. Nor does it establish that excluding the only two minority members of a panel is insufficient to raise suspicion. The majority left that preliminary question unresolved because the complete inquiry had occurred.

C. Juror 26: specific case connections supported the strike

The government’s explanations concerned Juror 26’s former residence near alleged crimes, his employment with the Peoria Housing Authority, his acquaintance with potential witness and victim Rachel Parker, and a prior domestic-battery arrest.

The defendants argued that geographic criteria operated as racial proxies in a segregated city. The majority nevertheless found the explanations sufficiently particularized: several charged shootings occurred on or near streets where Juror 26 had lived, and his employer managed Harrison Homes, a location connected to the allegations. The concern was not merely residence in a predominantly Black neighborhood, but possible knowledge of relevant places outside the trial record.

Comparative evidence also supported the district court’s findings:

• The government struck Juror 154, a white retired teacher, partly because of familiarity with potential witnesses’ surnames. That supported the claimed concern about Juror 26’s acquaintance with Parker.
• The retention of Juror 54, a white juror with a shoplifting conviction, did not establish equivalent treatment because the government distinguished a nonviolent offense from Juror 26’s arrest involving violence in a trial concerning violent crimes.

Juror 26’s assurances of fairness did not compel the prosecution to retain him. The ruling concerns whether the stated concerns were genuine, not whether they independently justified removing him for cause.

D. Juror 58: teaching near relevant locations was credited

The government explained that Juror 58 taught at a school near locations connected to the case and might have encountered relevant people or acquired knowledge of the area. The district court credited that explanation.

The government also struck Juror 154, a white teacher with much longer experience in Peoria. Although the defendants emphasized differences in residence and teaching tenure, the majority considered their shared connection to schools in the relevant geographic area sufficient to sustain the credibility finding.

The defendants’ earlier reliance on Juror 168 as a comparator was forfeited on appeal. Separately, the government’s concern about Juror 58’s denial of knowledge of local gang activity was not assessed because the district court had made no credibility finding on that rationale. The affirmance therefore should not be read as endorsing it.

E. Strategy explained the earlier silence; it did not create an exception to Batson

The majority accepted the district court’s finding that the government’s concern about revealing its selection strategy was sincere. Revealing an intention to strike teachers connected to particular Peoria schools might have allowed the defense to conserve its own strikes. The defense’s removal of Juror 35, a former Peoria teacher, provided some contextual support for that concern.

The crucial limitation is that the majority did not recognize a strategy privilege allowing prosecutors to ignore an otherwise applicable step-two obligation. It reasoned that the obligation had not arisen after the original step-one ruling. Strategy was considered as evidence bearing on the sincerity of the earlier refusal, not as an independent exemption from disclosure.

The government conceded that it should, as a matter of practice, have explained the strike when asked. The majority agreed and encouraged district courts to develop all three steps whenever possible.

5. The Dissent: Why the Process Was Insufficient

Judge Jackson-Akiwumi’s dissent challenges the reliability and institutional consequences of the majority’s approach.

Collective circumstances were improperly fragmented

The defendants’ argument concerned the elimination of both non-white members of a panel. Examining each strike separately obscured the alleged pattern. The dissent emphasized that collective assessment does not require a pattern in every case: one discriminatory strike remains unconstitutional.

Repeated refusal should have consequences

The dissent agreed that all three steps were open on remand but would have held the government to its deliberate original refusal. In her view, repeated opportunities to explain distinguished this case from one in which a party lacked a fair opportunity to participate. Allowing a new explanation risked rewarding silence and enabling after-the-fact reconstruction.

A written submission did not adequately establish historical intent

The dissent also questioned deference where the newly supplied reasons arrived in a brief, the original speaking prosecutor had left the U.S. Attorney’s Office, and the court did not hear testimony. Observing the prosecutor’s earlier insistence that a neutral explanation existed was not necessarily equivalent to evaluating the truth of the explanation later supplied.

Although the defendants opposed a hearing based on their restrictive interpretation of the mandate, the government requested one. The dissent maintained that the district court independently had to determine whether live evidence was necessary. She sought a new trial, not merely another opportunity to repair the record.

6. Potential Impact and Limits

Post-remand explanations remain possible in a defined setting

The decision supports receiving a previously withheld explanation where the original court rejected the prima facie showing and the appellate mandate expressly reopens the complete inquiry. It should not be generalized into permission to replace discredited explanations or add new rationales for the first time on appeal.

Specific geographic concerns may survive racial-proxy objections

Residence and employment can correlate strongly with race. This opinion does not make those criteria categorically safe. Rather, it demonstrates the importance of identifying concrete connections to charged events and examining how similarly situated white jurors were treated.

Comparative juror analysis remains central

The treatment of Jurors 154 and 54 materially influenced the outcome. Future litigants should develop comparisons tied to the actual asserted concern, rather than assuming that any shared feature makes jurors equivalent.

Credibility review is deferential, but the record matters

The majority leaves the paper-based determination intact here; it does not announce that evidentiary hearings are never necessary. The dissent identifies circumstances likely to generate future disputes: delayed explanations, unavailable original prosecutors, changed accounts, and reliance on demeanor that was never observed in connection with the actual justification.

A complete contemporaneous record remains the preferred practice

The strongest practical guidance is largely shared: courts should ordinarily develop all three steps, and prosecutors should explain challenged strikes when invited. Doing so protects constitutional rights and avoids later litigation over memory, waiver, strategy, and credibility.

7. Complex Concepts Simplified

Peremptory challenge

A limited opportunity to remove a prospective juror without establishing a legal disqualification. It cannot be exercised for a racially discriminatory purpose.

Prima facie showing

An initial showing sufficient to raise an inference of discrimination. It is not final proof that discrimination occurred.

Burden of production versus burden of persuasion

At step two, the government must supply a facially neutral explanation. The defendants retain the ultimate burden of showing purposeful discrimination at step three.

Pretext

A stated reason that conceals the actual reason. An explanation can sound neutral yet still be a cover for discrimination.

Comparative juror analysis

Comparing struck and retained jurors, or other struck jurors, to test whether the asserted selection criterion was applied consistently across racial groups.

Clear-error review

A deferential appellate standard. A plausible competing interpretation is insufficient; the appellate court must be firmly convinced that the factual finding was mistaken.

Waiver and forfeiture

Waiver generally involves deliberately relinquishing a position; forfeiture generally involves failing to preserve or pursue it. The dissent characterized the government’s repeated refusal as waiver, while the majority allowed its explanation on remand.

Step-one mootness

Once explanations have been supplied and actual discrimination has been decided, whether the challenger initially supplied enough evidence ordinarily no longer determines the outcome.

8. Conclusion

The Seventh Circuit affirmed because the remand reopened all three Batson steps and the district court’s acceptance of the government’s explanations was not clearly erroneous. The decision permits a previously withheld explanation in this procedural setting without recognizing a general strategy exception to Batson.

Its broader significance lies in the tension between deference to trial-court credibility findings and the need to establish prosecutors’ actual, contemporaneous reasons. The dissent exposes that tension sharply. For future cases, a complete explanation and meaningful credibility assessment during jury selection remain the most reliable safeguards against discriminatory strikes.