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

1. Introduction

This decision addresses how courts should repair an improperly conducted inquiry into racial discrimination during jury selection. Its central procedural holding is that a remand expressly directing the district court to conduct all three steps of the Batson v. Kentucky framework permitted the government to supply an explanation it had declined to disclose during the original jury selection. The majority then upheld the district court’s findings that the challenged strikes were not racially discriminatory.

The thirteen defendants were Black men prosecuted in a case involving alleged gang-related drug trafficking, shootings, and other violence. During selection of an ultimately all-white jury, the government used peremptory challenges to remove Juror 26, a Black man, and Juror 58, a Hispanic woman. They were the only two non-white prospective jurors on the first panel. The government disputed whether the defendants had established the racial composition of the entire venire, making the distinction between that first panel and the overall jury pool important.

The defendants’ first appeal established that the district court had mishandled Batson; it did not establish that the prosecutor had actually discriminated. Following a limited remand, the district court again rejected the discrimination claims. The second appeal therefore concerned the permissible scope of the corrective proceedings and the adequacy of the resulting credibility findings.

The majority, through Judge Lee, affirmed. Judge Jackson-Akiwumi would have ordered a new trial, concluding that the government’s delayed explanation and the district court’s paper-based credibility assessment failed to remedy the original errors.

2. Background and Procedural History

The original jury-selection proceedings

Juror 26 worked for the Peoria Housing Authority and had previously lived near locations associated with the charged crimes. Juror 58 taught Spanish and English as a Second Language at a Peoria charter school. After the government struck both, the defendants raised a timely Batson objection.

The district court initially rejected the objection at step one, reasoning that the defendants had not proved purposeful discrimination. It also accepted the government’s argument that Juror 58’s racial or ethnic identity was uncertain. Both features of this initial analysis became significant: step one requires an inference of discrimination, not proof of it, and a defendant need not share the excluded juror’s race.

Although maintaining its step-one ruling, the court invited the government to provide race-neutral explanations. The prosecutor supplied four reasons for striking Juror 26 and represented that those reasons had been recorded contemporaneously. The prosecutor repeatedly declined to explain the strike against Juror 58, insisting that the adverse step-one ruling eliminated any obligation to do so. The court’s purported final assessment consisted of the statement, “I will find those are race-neutral reasons.”

The first appeal and remand

In United States v. Watkins, 107 F.4th 607, 621 (7th Cir. 2024), the Seventh Circuit found two principal errors. First, the district court had imposed too demanding a threshold at step one. Second, merely labeling explanations race-neutral did not determine whether they were credible or pretextual at step three. The court otherwise affirmed the judgment and remanded for the limited purpose of correctly conducting the three-step inquiry concerning both jurors.

The proceedings after remand

The defendants argued that the remand permitted only a renewed step-three analysis. The district court instead revisited all three steps. It found the threshold satisfied for Juror 26 but not for Juror 58, while nevertheless completing the remaining steps for both.

The government repeated its explanations for Juror 26 and, for the first time, supplied reasons for striking Juror 58. Although the government requested an evidentiary hearing, the defendants objected, and the court resolved the matter on written submissions. It found the explanations credible and rejected both challenges.

3. Summary of the Opinion

The majority’s decision rests on five conclusions:

1. The mandate authorized all three steps. A remand directing the district court to “correctly employ” the three-step process was not confined to its final stage.
2. The unresolved threshold dispute concerning Juror 58 was no longer dispositive. Once the prosecutor supplied explanations and the district court decided intentional discrimination, the preliminary prima facie question became moot.
3. The explanations were facially race-neutral. Connections to relevant locations, potential witnesses, and a prior violent-crime arrest satisfied the government’s burden of production.
4. The credibility findings were not clearly erroneous. The district court permissibly credited the government’s explanations after considering the defendants’ objections and comparisons with white jurors.
5. The original refusal to explain Juror 58’s exclusion did not preclude an explanation on this remand. The majority relied on the mandate and the absence of a step-two obligation under the district court’s original step-one ruling.

The court therefore affirmed. Importantly, it did not create a general strategic privilege to withhold explanations once Batson requires them. It also endorsed the better practice of completing all three steps when possible, even after rejecting the initial threshold showing.

4. Analysis of the Court’s Legal Reasoning

A. The mandate controlled the permissible scope of remand

The defendants’ proposed restriction to step three conflicted with the first appellate decision’s express direction to conduct the “three-step process.” That language authorized a renewed threshold assessment, the production of explanations, and a final determination of discriminatory purpose.

This point should not obscure the actual disagreement between the majority and dissent. Judge Jackson-Akiwumi agreed that the district court could revisit all three steps. Her objection was that authority to repeat the process did not necessarily restore an explanation the government had deliberately declined to provide. Thus, the division concerned waiver and evidentiary consequences, not simply the meaning of “three-step.”

B. Step one requires suspicion supported by circumstances, not proof

At step one, the challenger must identify circumstances supporting an inference that a strike was racially motivated. A demonstrated pattern is one possible basis for that inference, but it is not indispensable. Nor must the defendant prove discrimination before learning the prosecutor’s explanation.

The majority acknowledged that the district court may again have demanded too much concerning Juror 58. It nevertheless declined to resolve the issue because the court had proceeded to the ultimate discrimination question. Under the governing precedent, that completed inquiry displaced the preliminary threshold dispute.

The dissent considered this treatment insufficiently protective. Because the defendants challenged the exclusion of both non-white panel members, she would have required consideration of the strikes together. Examining each in isolation, she reasoned, obscured the combined circumstances that made the exclusions suspicious. The majority’s mootness analysis should therefore not be read as approval of the district court’s separate or demanding threshold assessments.

C. Step two concerns facial neutrality, not persuasive force

The prosecutor’s step-two obligation is a burden of production: articulate an explanation that does not inherently depend on race. Whether that explanation is convincing belongs principally to step three.

For Juror 26, the government identified his former residence near crime locations, employment involving a relevant housing development, acquaintance with potential witness and victim Rachel Parker, and prior domestic-battery arrest. For Juror 58, it identified her teaching position near relevant locations and the possibility of contact with people connected to the case.

These reasons were facially neutral, but that did not end the inquiry. An apparently neutral reference to residence or employment can still conceal racial motivation. The constitutional question remained whether these were the prosecutor’s actual reasons.

D. Juror 26: geography, witness familiarity, and the arrest distinction

The defendants argued that residential segregation made the government’s geographic explanation a proxy for race. The majority responded that the explanation was more particularized than a general objection to residents of Peoria’s south side. Juror 26 had lived near several specifically alleged shootings and other crimes during the relevant period. His employment also potentially supplied information about Harrison Homes, a significant location in the prosecution, beyond the trial evidence.

Juror 26 denied knowledge of the charged crimes and said he could remain impartial. The court nevertheless upheld the finding that concern about his familiarity with relevant locations was genuine. This reflects the distinction between a peremptory challenge and removal for demonstrated inability to serve impartially: a prospective juror’s assurances do not automatically defeat a lawful peremptory strike.

Comparisons with white prospective jurors supported the remaining explanations:

• Witness familiarity: The government also struck Juror 154, a white retired teacher, partly because she recognized potential witnesses’ surnames. That conduct supported the sincerity of its concern about Juror 26’s acquaintance with Parker.
• Potential prosecution sympathy: Although acquaintance with a victim might benefit the government, its comparable treatment of Juror 154 supported the conclusion that it genuinely wished to avoid such connections.
• Prior criminal history: The government retained Juror 54, a white juror convicted of shoplifting, but distinguished that nonviolent offense from Juror 26’s domestic-battery arrest in a prosecution involving violence. The majority accepted that distinction as credible.

The opinion did not treat Juror 26’s arrest as proof that he committed domestic battery. Its relevance was the prosecutor’s stated selection concern and the district court’s assessment of whether that concern was genuine.

E. Juror 58: delayed explanations and claimed selection strategy

The most consequential dispute concerned the government’s repeated refusal to explain Juror 58’s exclusion during the original proceedings. On remand, the government said disclosure would have exposed its selection criteria, enabling the defendants to preserve their own strikes by leaving jurors whom the prosecution would likely remove.

The majority treated that account as evidence bearing on credibility, not as an independent exception to Batson. In its view, the government had not yet incurred a step-two obligation because the district court had rejected the prima facie showing. The trial judge could therefore consider whether the asserted strategic motive sincerely explained the earlier silence.

The majority found some record support in the defense’s removal of Juror 35, a former Peoria High School teacher. Had the prosecution disclosed its concern about local teaching connections, the defense might have left him for the government to strike. This was a counterfactual explanation of strategy, not evidence that the government actually struck Juror 35.

The government’s treatment of Juror 154 also supported its substantive explanation. Although she had taught locally much longer than Juror 58 and lived in Peoria, both taught at schools in the relevant geographic area, and the government struck both. Their differences did not compel a finding of pretext.

The court did not rely on an additional assertion that Juror 58’s professed ignorance of local gang activity was suspicious. The district court had made no credibility finding on that reason. An argument involving Juror 168 was forfeited on appeal.

F. Credibility findings and clear-error review

The majority emphasized that determining discriminatory intent is fact-intensive and ordinarily belongs to the trial judge. It deferred to that judge’s observations during the original voir dire, including the prosecutor’s insistence that a neutral explanation existed, and upheld the later findings made on the briefs.

The dissent challenged the foundation for that deference. The actual explanation for Juror 58 appeared only in a later filing; the prosecutor who had spoken during voir dire had left the U.S. Attorney’s Office and did not sign it. Observing the original refusal, she argued, was not equivalent to evaluating the credibility of the subsequently supplied reason.

The majority’s affirmance establishes that this record did not require reversal for lack of a hearing. It does not announce that evidentiary hearings are never necessary on a Batson remand. The dissent’s objection was specifically that the newly supplied explanation and disputed credibility made one necessary here.

5. Precedents Cited and Their Influence

A. The constitutional framework

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

This is the controlling source of the three-stage inquiry: an inference of discrimination, a race-neutral explanation, and a determination of purposeful discrimination. Its requirement of a sensitive examination of available evidence supports both the majority’s contextual review and the dissent’s insistence on meaningful enforcement. It also establishes why a neutral label alone cannot substitute for a credibility finding.

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

The majority used this decision to explain that an inference is a conclusion drawn logically from other facts, reinforcing the modest initial burden. The dissent invoked its discussion of prosecutorial nonresponse: refusal to explain a strike can add support to an existing inference of discrimination. For the dissent, the case also underscored that Batson seeks actual answers rather than speculation about possible legitimate motives.

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

This decision establishes that defendants may challenge discriminatory exclusion of jurors of a different race. It undermines any suggestion that the Black defendants’ challenge to the exclusion of a Hispanic woman required a different or heightened threshold. The dissent also relied on its recognition of jury service as an important form of civic participation.

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

This precedent supplied three central propositions: the prima facie dispute becomes moot after explanations and an ultimate discrimination ruling; facial neutrality turns on whether discriminatory intent inheres in the explanation; and trial-level credibility findings receive substantial deference. The first proposition allowed the majority to bypass the renewed step-one dispute concerning Juror 58.

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

The majority relied on this decision to keep steps two and three distinct. An explanation need not be persuasive or even plausible to satisfy step two, provided it is facially race-neutral. That low production threshold does not resolve whether the explanation is genuine.

B. Credibility, comparative evidence, and appellate deference

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

The majority cited this decision for clear-error review and the ultimate question whether the defendant established purposeful discrimination. It frames the appellate task as reviewing the district court’s factual assessment rather than deciding credibility anew.

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

The majority drew from this case the relevant credibility considerations: prosecutorial demeanor, the reasonableness of the explanation, and its connection to accepted trial strategy. The dissent emphasized its recognition that demeanor can be the best evidence and that delayed recollections risk distortion. The same precedent thus supported deference in principle while furnishing grounds to question its application to this paper record.

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

This decision reinforced that assessing discriminatory intent lies particularly within the trial judge’s province. Its role was to support the majority’s deferential approach to the district court’s step-three findings.

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

The majority relied on its formulation that reversal requires a definite and firm conviction of mistake, and on the trial court’s superior position to evaluate credibility. The dissent relied on a different aspect: its recommended practice of explicitly addressing each stage and permitting submissions on all three before ruling. She viewed that guidance as inconsistent with allowing a prosecutor to halt the court’s inquiry unilaterally.

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

This case supplied the basis for finding the original one-sentence ruling inadequate. A court must assess credibility, not merely identify facial neutrality. The dissent concluded that the remand proceedings still failed that requirement because the later paper submissions did not establish whether the asserted reasons were actual ones.

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

Cited through the dissent’s discussion of the later United States v. Taylor decision, this case reinforces that step three evaluates the honesty of the prosecutor’s explanation. Its significance is the distinction between a legally permissible explanation and a historically truthful one.

C. Delayed reasons, waiver, and the opportunity to participate

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

The dissent relied on this decision’s insistence that prosecutors state their reasons and stand or fall on them. Its warnings about afterthought explanations supported her objection to permitting a new justification after remand. It also supplied the broader concern that discriminatory jury selection undermines public confidence in judicial neutrality.

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

Identified in the opinion as “Taylor I,” this decision directs courts to consider the initially supplied reasons rather than additional after-the-fact explanations. The dissent extended that reasoning to an initial decision to supply no reason at all. The majority did not adopt that extension in the circumstances of this mandate and the original step-one rejection.

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

This case rejected a justification first advanced on appeal and required the challenged strike to stand or fall on reasons presented during the district-court inquiry. The dissent treated it as reinforcing the importance of contemporaneous explanations. Its procedural setting differs from the present case, where the new explanation was received by the district court under an express remand.

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

As described in the supplied opinion, this decision found no defense waiver where the trial court denied a sufficient opportunity to rebut the prosecutor’s explanations. The dissent reasoned by analogy that waiver depends on having a genuine opportunity to participate. Because the government had several opportunities to explain Juror 58’s exclusion and deliberately declined, she would have found waiver. That proposed application to prosecutorial silence was the dissent’s reasoning, not the majority’s holding.

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

The dissent cited this case for the significance of explanations that shift over time and for the prohibition against even one discriminatory strike. The government originally invoked the absence of an established racial identity and later invoked strategy to explain its silence. The dissent considered that change potentially probative of pretext.

D. Collective assessment, remand practice, and institutional responsibility

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

The earlier appeal furnished both the governing mandate and the explanation of the original errors. Its express reference to all three steps controlled the majority’s scope-of-remand analysis. Its description of the light initial burden also supported the dissent’s criticism of the district court’s renewed threshold ruling.

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

This is the post-remand district-court decision under review, rather than an independent appellate precedent. The dissent quoted it to identify the treatment of Juror 58’s protected status, the government’s refusal to explain the strike, the strategic justification, and the decision to proceed without an evidentiary hearing.

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

Called “Stephens I,” this decision recognizes that excluding persons of color can be suspicious even when those excluded belong to different racial or ethnic groups. It was central to the dissent’s position that the district court should assess the removal of both minority panel members collectively rather than divide the challenge by ethnicity.

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

Called “Stephens II,” this later decision followed a remand apparently handled on written submissions. The district court here inferred implicit approval of that procedure. The dissent rejected the inference because the appellate decision had not actually resolved whether dispensing with a hearing was proper. The distinction is between a procedure previously used and a procedure affirmatively approved.

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 used it to support a hearing where the sincerity of a newly supplied explanation could not adequately be evaluated from written submissions.

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

Quoted through United States v. Lovies, this decision supports expressly delineating all three steps and reserving the final ruling until the process is complete. Its practical importance is the creation of a record adequate for meaningful appellate review.

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

This decision supplied much of the dissent’s institutional framework: one discriminatory strike is unconstitutional; the inquiry concerns actual reasons; and trial judges bear primary responsibility for enforcing Batson. It also explains why the constitutional injury extends beyond defendants to excluded citizens and public confidence in the courts.

6. The Dissent’s Proposed Rule and Remedy

Judge Jackson-Akiwumi’s position was not that the government necessarily acted with racial animus. She expressly acknowledged the possibility that Juror 58 was excluded for nondiscriminatory reasons. Her objection was that the procedure never reliably established that fact.

Her analysis had three principal components:

1. Assess the strikes together. The removal of both non-white members of the first panel supplied a combined basis for suspicion, regardless of their different racial or ethnic identities.
2. Give the deliberate refusal consequences. Repeated opportunities to explain the strike should have foreclosed a first-time explanation on remand. The refusal itself should instead have entered the assessment of discriminatory intent.
3. Require adequate credibility testing. Strategy did not excuse participation once the court proceeded to step two, and the later explanation required an evidentiary hearing rather than acceptance on the papers.

Considering the accumulated errors before and after remand, she would have ordered a new trial rather than another limited corrective proceeding.

7. Potential Impact and Limits

Greater flexibility in corrective proceedings

The decision permits meaningful reconstruction of a defective Batson inquiry when the appellate mandate directs all three steps. In comparable circumstances, the government may be allowed to explain a strike for the first time after remand, notwithstanding an earlier refusal following a favorable step-one ruling.

That principle is limited. The opinion does not authorize unrestricted substitution of reasons, explanations first invented on appeal, or refusal after a prima facie finding has triggered the production obligation.

Continued importance of fact-specific comparisons

The treatment of Jurors 154 and 54 shows how comparative evidence can support, rather than merely undermine, a prosecutor’s explanation. Similar treatment across racial lines can corroborate a stated criterion; relevant differences between jurors can explain different treatment. Neither comparison is mechanical: the credibility of the asserted distinction remains decisive.

No categorical approval of geographic exclusions

The majority accepted connections to particular crime locations, not a blanket policy against residents of a racially segregated area. Future challenges may still establish that location or employment functions as a racial proxy. The strength of the connection to the actual prosecution will matter.

A strong incentive to build the record immediately

Although the government prevailed, it conceded that it should have provided its explanation when originally asked. The majority agreed and encouraged courts to address all three stages when possible. That recommendation reduces delayed recollections, disputes over waiver, and uncertainty about whether an appellate court can meaningfully review credibility.

An unresolved tension over paper-based credibility findings

The majority’s reliance on trial-level deference and the dissent’s demand for live testing identify a recurring problem: how much weight should a reconstructed explanation receive when its original speaker does not personally present it? This decision resolves that question on its record, but leaves substantial room for different results where the evidentiary foundation is weaker or the explanations shift more materially.

8. Complex Concepts Simplified

Peremptory challenge

A limited opportunity to remove a prospective juror without proving inability to serve impartially. It cannot lawfully be exercised because of race.

Prima facie showing

Enough initial evidence to raise an inference of discrimination and require an explanation—not proof that discrimination occurred.

Burden of production and burden of persuasion

The prosecutor must produce a neutral explanation at step two. The challenger retains the ultimate burden of establishing intentional discrimination.

Pretext

An apparently legitimate explanation that conceals the actual, unlawful reason for a decision.

Comparator evidence

Evidence comparing how relevantly similar jurors of different races were treated.

Clear error

A deferential review standard under which an appellate court reverses a factual finding only when firmly convinced that a mistake occurred.

Waiver and forfeiture

Waiver ordinarily involves intentional relinquishment of an argument; forfeiture involves failing to preserve it. The dissent characterized the government’s repeated refusal as waiver. The majority separately treated the defendants’ unused Juror 168 argument as forfeited.

Limited remand

An appellate instruction returning a case for a specified task rather than reopening the entire prosecution. Here, the task encompassed all three stages of the jury-selection discrimination inquiry.

9. Conclusion

The decision permits a previously withheld strike explanation within an expressly authorized three-step Batson remand and upholds the resulting nondiscrimination findings under clear-error review. Its holding is procedural and fact-specific, not a general license to postpone explanations or conceal discriminatory jury selection behind strategy.

The broader lesson is that contemporaneous explanations and explicit credibility findings remain the safest means of enforcing equal protection. The dissent underscores the competing danger: corrective flexibility can weaken Batson if delayed explanations receive deference without adequate testing.