A Three-Step Batson Remand May Permit Previously Withheld Strike Explanations After an Initial Step-One Rejection

4.1. Precedents Cited and Their Significance

The governing constitutional framework

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

Batson supplies the controlling three-stage inquiry: the challenger first establishes circumstances supporting an inference of discrimination; the striking party then articulates a race-neutral explanation; and the court finally determines whether purposeful discrimination has been proved. Its requirement to consider relevant circumstances and available evidence of intent underlies both opinions. The majority regarded the corrected remand findings as sufficient; the dissent believed the process still failed to test whether the explanations were genuine.

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

The majority used Johnson to explain that an inference is a conclusion drawn from other facts, reinforcing the modest nature of the initial burden. The dissent invoked its discussion of a prosecutor declining to answer a judicial inquiry: such silence can provide additional support for an inference of discrimination. The disagreement therefore concerned not the low threshold itself, but the consequences of the government’s refusal after the district court erroneously found that threshold unmet.

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

Powers establishes that a defendant may challenge discriminatory exclusion of a juror of a different race. It undermines any suggestion that these Black defendants could not challenge removal of a Hispanic prospective juror. The dissent also relied on its recognition of jury service as an important form of democratic participation.

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

Hernandez supported three important propositions. First, the prima facie issue becomes moot once the prosecutor explains the strikes and the court decides intentional discrimination. Second, step two concerns facial neutrality unless discriminatory intent is inherent in the explanation. Third, credibility findings ordinarily receive substantial appellate deference. Together, these principles supplied much of the majority’s analytical structure.

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

Purkett establishes that a step-two explanation need not yet be persuasive or even plausible. Its significance is the separation between producing a facially neutral explanation and proving that the explanation is believable. An explanation’s weakness remains relevant at step three; passing step two does not establish constitutional compliance.

Credibility findings and appellate review

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

The majority cited Snyder for clear-error review and for the ultimate inquiry into purposeful discrimination. This standard prevented the appellate court from simply substituting its preferred reading of the record for a permissible factual assessment by the district court.

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

The majority drew from this decision the relevant credibility considerations: prosecutorial demeanor, the reasonableness or improbability of an explanation, and its grounding in accepted trial strategy. The dissent emphasized its complementary warnings about the deterioration of recollection over time and the importance of observing the attorney who exercised the strike. The precedent thus supported both deference to genuine trial-level assessment and scrutiny of whether such an assessment actually occurred.

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

Morgan reinforced the majority’s view that the fact-intensive assessment of discriminatory intent lies particularly within the trial judge’s province. Its role was to explain why competing interpretations of the evidence do not necessarily establish reversible error.

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

The majority relied on Lovies for deferential review and the trial judge’s superior opportunity to assess demeanor. The dissent emphasized its procedural guidance: judges may hear the parties on all three steps before announcing their rulings. For the dissent, that guidance demonstrated why a prosecutor should not be permitted to prevent completion of an inquiry the judge elects to conduct.

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

Lisle explains why merely labeling an explanation “race-neutral” does not constitute the required finding that it is credible. It supported the original remand. The dissent maintained that the renewed paper-based findings concerning Juror 58 still left the reviewing court unable to know whether the prosecutors were credible.

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

Cited through the dissent’s discussion of United States v. Taylor, this decision identifies step three as an inquiry into the credibility or honesty of the stated rationale. It supported the dissent’s insistence that assessing facial neutrality alone was insufficient.

The mandate and the treatment of minority jurors collectively

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

The earlier appellate decision supplied the controlling mandate. Its express direction to employ the “three-step process” defeated the defendants’ proposed step-three-only limitation. Both the majority and dissent accepted that all three steps could be revisited; they disagreed about whether the government’s original refusal restricted what explanations could properly be considered.

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

This was the district court’s remand decision under review, not an independent appellate precedent. The dissent cited its acknowledgment that Juror 58 was Hispanic, its description of the government’s refusal to explain her removal, and its reasons for accepting written submissions without a hearing.

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

The dissent relied on this decision’s recognition that exclusion of nearly all people of color is not less suspicious merely because multiple ethnic groups are affected. It supported assessing the two challenged strikes together rather than isolating each juror’s racial identity and circumstances.

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

The district court treated this later decision as implicitly approving a remand inquiry conducted on written submissions. The dissent rejected that reading: because the earlier appellate panel did not decide whether a hearing was necessary, its silence did not establish that dispensing with one was appropriate here.

Delayed explanations, waiver, and judicial control

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

The dissent invoked the requirement that prosecutors stand or fall on the reasons they give, together with the danger that later explanations may be afterthoughts. It also cited the decision’s broader concern that discriminatory jury selection undermines public confidence in adjudication.

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

The dissent relied on this decision’s instruction to consider the reasons initially offered for a strike rather than additional reasons supplied afterward. The majority did not expressly reconcile that instruction with its result. Its rationale instead rested on the original step-one ruling and the scope of the remand. This leaves an important distinction between later supplementation of an explanation and an initial explanation supplied after an earlier refusal deemed permissible by the majority.

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

Brasher rejected a rationale first articulated on appeal rather than during the district court’s Batson inquiry. The dissent treated it as further support for contemporaneous explanation. The present majority permitted explanations in remand proceedings before the district court, not appellate counsel’s independent reconstruction of a strike on appeal.

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

As described in the supplied opinion, Pitchford held that a defendant had not waived a pretext argument when the trial court denied a sufficient opportunity to present it. The dissent reasoned by analogy that waiver should depend on opportunity: because the government repeatedly had an opportunity to explain Juror 58’s removal and deliberately declined, it should not receive another opportunity on remand. The majority did not adopt that proposed extension.

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

Appearing within the dissent’s quotation from United States v. Lovies, this decision supported explicitly addressing each step and reserving final judgment until the full inquiry is complete. Its role was procedural guidance, not an independent holding governing delayed explanations.

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

The dissent cited this separate decision as an example of circumstances requiring an evidentiary hearing to develop the record and question the prosecutor. It supported a fact-specific hearing requirement here, rather than a proposition that every remanded Batson challenge necessarily requires live testimony.

The constitutional stakes and evidence of pretext

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

Flowers framed the dissent’s account of the constitutional interests involved: a discrimination-free trial, equal access to jury service, and the trial judge’s primary responsibility to enforce Batson. It also establishes that exclusion of even one prospective juror for a discriminatory purpose is unconstitutional and that the inquiry concerns actual reasons, not merely conceivable neutral ones.

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

The dissent cited Foster both for the single-juror principle and for the evidentiary significance of shifting explanations. It viewed the movement from an original objection concerning Juror 58’s racial identification to a later strategy-based explanation for silence as potentially supporting pretext. That shift concerned the reason for withholding an explanation, an important distinction from directly changing the stated reason for the strike itself.

4.2. The Majority’s Legal Reasoning

A limited remand can still encompass the entire prescribed inquiry

The defendants’ mandate argument confused a limitation on subject matter with a limitation on analytical stages. The earlier opinion restricted proceedings to the two challenged strikes, but expressly required the three-step process. The district court therefore could receive explanations and make findings at each stage. The majority also rejected the contention that the mandate itself prohibited explanations not supplied during the original selection proceedings.

The court avoided endorsing the renewed step-one ruling

On remand, the district court found a sufficient threshold showing for Juror 26 but not Juror 58. The majority acknowledged that the latter ruling might again have imposed an excessively demanding burden. It nevertheless applied Hernandez v. New York: because the government had explained both strikes and the district court had decided discriminatory intent, the preliminary issue was moot.

Consequently, this opinion should not be read as holding that removing the only two non-white members of a panel is insufficient to support an inference of discrimination. The majority declined to resolve that question.

Facial neutrality and actual motivation remained separate questions

The government’s explanations passed step two because none inherently expressed discriminatory intent. The more important question was whether those explanations genuinely motivated the strikes. The burden of producing explanations shifted to the government, but the ultimate burden of proving purposeful discrimination remained with the defendants.

These findings were contextual, not categorical. The decision does not make residence in a segregated neighborhood, employment in public housing, or teaching in a particular community automatically legitimate grounds for exclusion. Such explanations remain subject to scrutiny as possible racial proxies.

The court did not rely on the government’s additional concern that Juror 58 denied knowledge of local gang activity, because the district court made no credibility finding on that rationale. It also did not consider Juror 168 as a comparator because that argument had been forfeited on appeal.

Strategy explained the original silence; it did not excuse a triggered duty

The majority treated the original step-one rejection as decisive to whether an immediate explanation was legally required. Because the district court had ruled that the defendants failed at that stage, the government was not then under a step-two obligation.

The later strategy explanation served a narrower role: assessing whether the government’s original insistence that it possessed a neutral reason was sincere. Disclosure might have enabled the defense to conserve its own strikes by anticipating which jurors the prosecution would remove. The defense’s removal of Juror 35, a former Peoria teacher, offered some record support for that concern.

This reasoning does not authorize withholding explanations to protect strategy once step two is properly triggered. The majority also agreed that the better practice was to provide the requested explanations during voir dire and encouraged district courts to address all three steps when possible.

Deference sustained the findings despite the paper-based proceedings

The majority relied on the district judge’s observations during the original jury selection and its assessment of the written record on remand. Under clear-error review, the question was not whether a different inference was possible, but whether the appellate court had a definite and firm conviction that a mistake occurred. It found no such basis for reversal.

4.3. The Dissent: A Challenge to the Reliability of the Process

Judge Jackson-Akiwumi’s disagreement was not limited to the weight assigned to particular explanations. She challenged whether the procedure reliably tested actual motivation at all.

• Collective circumstances: The district court should have considered the removal of both non-white prospective jurors together. No precise matching of the defendants’ and jurors’ racial identities was necessary.
• Waiver through deliberate refusal: Although all three steps were open on remand, the government’s repeated refusal to explain Juror 58’s removal should have barred a newly supplied explanation. Opportunity to participate, in her view, carried consequences.
• No strategy exception: Protecting jury-selection strategy could not outweigh the constitutional inquiry. She also viewed the later strategic account as potentially inconsistent with the original justification for refusing to answer.
• An inadequate credibility record: The newly stated reasons arrived in a brief, the prosecutor who had spoken during voir dire had left the U.S. Attorney’s Office and did not sign that filing, and no hearing tested the account. Observing an earlier refusal was not equivalent to evaluating the credibility of the later explanation.

The dissent acknowledged the defendants’ opposition to a hearing but emphasized both the government’s repeated hearing requests and the court’s independent responsibility to determine what the inquiry required. She would have ordered a new trial, not another opportunity to reconstruct the reasons for the strikes.

4.4. Potential Impact

Remand litigation: The opinion makes the mandate’s wording central. An expressly three-step remand may permit explanations absent from the original proceedings where the trial court had initially rejected the threshold showing. Its reach is narrower than a general license to revise or invent reasons after the event.

Prosecutorial practice: Despite affirmance, the decision favors contemporaneous disclosure when the judge requests it. Refusal can create avoidable appellate disputes over preservation, sincerity, and reconstruction of motives.

Trial-court practice: Judges should distinguish a finding that a reason is facially neutral from a finding that it is true. Completing and documenting all three stages can prevent repeated remands. Whether a hearing is necessary remains sensitive to the record; the majority did not announce that written submissions always suffice.

Defense practice: Challengers should preserve the panel’s composition, the collective pattern of strikes, meaningful white-juror comparisons, and objections to delayed explanations. Comparator arguments also must be maintained on appeal.

Future doctrinal disputes: The sharpest unresolved tension concerns the boundary between permissible first explanations on remand and impermissible post hoc justifications. The dissent’s reliance on waiver, contemporaneous explanation, and meaningful credibility testing provides a developed argument for limiting the majority’s result to its circumstances.