A Three-Step Batson Remand Permits Initially Withheld Strike Explanations After a Step-One Rejection

1. Introduction

This decision concerns the enforcement of the constitutional prohibition against racial discrimination in jury selection. Thirteen Black defendants challenged the prosecution’s use of peremptory strikes against the only two non-white prospective jurors on the first jury-selection panel. The defendants were ultimately convicted by an all-white jury.

The appeal followed an earlier remand requiring the district court to apply correctly the three-step framework established in Batson v. Kentucky. The central questions were whether that remand allowed the prosecution to supply an explanation it had previously declined to disclose, whether the explanations were genuinely nondiscriminatory, and whether the district court’s credibility findings deserved appellate deference despite its resolving the remand proceedings on written submissions.

The majority affirmed. Its principal procedural holding is that the mandate authorizing a renewed three-step Batson inquiry permitted consideration of a previously withheld explanation where the original court had rejected the challenge at step one. The decision does not establish a general privilege to conceal jury-selection strategy once a prosecutor’s obligation to explain a strike has arisen.

2. Background and Procedural History

The challenged strikes

The district court called five panels of prospective jurors. The first included:

• Juror 26: A Black man employed by the Peoria Housing Authority who previously lived near locations implicated in the prosecution.
• Juror 58: A woman who taught Spanish and English as a Second Language at a Peoria charter school. Although her racial or ethnic identity was disputed initially, the parties agreed on remand that she was Hispanic and belonged to a protected class.

The government struck both. The defendants objected that these strikes removed the panel’s only non-white members. Although the record concerning the racial composition of the entire venire was disputed, the seated jury’s exclusively white composition was undisputed.

The original ruling and first appeal

The district court initially rejected the challenge because the defendants had not proved purposeful discrimination at Batson’s first step. It also relied on the absence of an established discriminatory pattern and uncertainty about Juror 58’s ethnicity.

The court later invited explanations without changing that ruling. The prosecution provided four reasons for striking Juror 26 but declined repeated opportunities to explain its strike of Juror 58, maintaining that no explanation was required after the step-one rejection. The court’s ensuing assessment consisted of the statement: “I will find those are race-neutral reasons.”

In United States v. Watkins, 107 F.4th 607 (7th Cir. 2024), the Seventh Circuit identified two errors: step one required circumstances raising suspicion, not proof of discrimination; and merely labeling reasons race-neutral did not supply the credibility finding required at step three. The court otherwise affirmed the judgment and remanded for proper application of the three-step process. Importantly, that decision identified an inadequate inquiry, rather than conclusively finding that the strikes were discriminatory.

The remand proceedings

The defendants argued that the remand was confined to step three and opposed an evidentiary hearing. The district court instead revisited all three steps and ultimately resolved the matter on the briefs. It accepted the prosecution’s explanations and again rejected the discrimination claim.

The court found the defendants had satisfied step one for Juror 26 but not Juror 58. Nevertheless, it addressed steps two and three for both jurors, enabling review of its ultimate discrimination findings.

3. Summary of the Opinion

Judge Lee’s majority opinion reached five principal conclusions:

1. The mandate authorized all three steps. Its express direction to employ the three-step process was not limited to reconsidering credibility.
2. The disputed step-one ruling no longer controlled. Once the prosecution supplied explanations and the court decided intentional discrimination, the preliminary prima facie question became moot.
3. The explanations were facially race-neutral. They concerned case-related geographic connections, employment, acquaintance with a potential witness, and a prior arrest.
4. The credibility findings were not clearly erroneous. The record supported the district court’s acceptance of those reasons as genuine rather than pretextual.
5. The earlier refusal to explain Juror 58’s strike did not foreclose an explanation on this remand. The majority emphasized the original step-one rejection, the mandate’s breadth, and the trial judge’s assessment of the prosecution’s sincerity.

Judge Jackson-Akiwumi would have ordered a new trial. She considered the renewed inquiry defective at every stage and regarded the prosecution’s repeated refusal to explain Juror 58’s strike as a waiver of its ability to supply a justification later.

4. Analysis: The Majority’s Legal Reasoning

A. The remand mandate, not the defendants’ interpretation, defined the proceedings

The prior mandate directed the district court to “correctly employ[] the three-step process under Batson” for both challenged jurors. The majority treated that language as authorizing a complete inquiry, including receipt of explanations at step two.

This holding is mandate-specific. It does not establish that every limited remand permits new evidence or new reasons. Here, the expressly authorized process included a stage at which the government had not previously supplied an explanation for Juror 58.

The dissent agreed that all three steps were properly before the district court. The actual disagreement was whether the government’s earlier refusal limited what it could offer within that authorized inquiry.

B. Step one required an inference, not proof

At step one, a defendant must identify circumstances supporting an inference of discriminatory purpose. A demonstrated history or pattern of discriminatory strikes is not indispensable. Nor must the defendant and excluded juror share the same race.

The majority acknowledged that the district court might again have demanded too much when assessing Juror 58. It did not affirm that assessment. Instead, it applied the rule that the preliminary question becomes moot after the prosecutor offers explanations and the court resolves the ultimate question of intentional discrimination.

Thus, the opinion cannot fairly be read as holding that striking the only two non-white panel members is insufficient to raise an inference of discrimination. The majority bypassed that unresolved issue because the district court had completed the remaining steps.

C. Step two tests facial neutrality, not persuasive force

The prosecution’s step-two burden is one of production: it must articulate a reason that does not inherently express discriminatory intent. The explanation need not yet be convincing. Whether it is believable belongs principally to step three.

For Juror 26, the government identified four reasons:

• His former residence near locations of charged incidents;
• His employment by the housing authority responsible for a development connected to the alleged crimes;
• His acquaintance with Rachel Parker, a potential government witness and alleged victim; and
• His prior arrest for domestic battery.

For Juror 58, the government relied on her teaching at a school near relevant crime locations and the possibility that she had encountered people connected to the case.

The government also expressed concern about Juror 58’s denial of knowledge of local gang activity. Because the district court made no credibility finding on that explanation, the appellate court expressly found it unnecessary to address it. That rationale therefore was not an affirmed basis for the decision.

D. Step three required genuine, case-specific credibility findings

The decisive question was whether the facially neutral explanations were the actual reasons for the strikes. The defendants retained the ultimate burden of proving purposeful discrimination. The majority reviewed the district court’s factual findings for clear error, giving particular weight to the trial judge’s position to assess credibility.

Juror 26: Geography and employment

The defendants argued that Peoria’s residential segregation made geography an indirect racial criterion. The majority did not reject the possibility of geographic pretext in principle. Instead, it distinguished a generalized objection to living or working on Peoria’s south side from the specific connections established here.

Juror 26 had lived near streets where charged shootings and other incidents occurred during his residence. His employer managed Harrison Homes, a development associated with alleged gang activity and shootings. The government’s stated concern was that he might possess knowledge outside the trial record.

The majority held that the district court could credit that concern despite the juror’s assurances of impartiality and lack of knowledge of the charged crimes. The holding therefore concerns the credibility of these particular explanations, not unrestricted approval of neighborhood-based strikes.

Juror 26: Witness familiarity and the white comparator

The defendants characterized his limited acquaintance with Parker as an implausible reason for exclusion, particularly because familiarity with an alleged victim might benefit the prosecution.

The government, however, also struck Juror 154, a white retired teacher who recognized potential witnesses’ surnames without knowing them personally. That parallel treatment supported the finding that avoiding witness familiarity was a genuine selection criterion, even when the connection might arguably favor the government.

Juror 26: Prior arrest and materially different conduct

The defendants compared Juror 26 with Juror 54, a white juror whom the government did not strike despite a shoplifting conviction. The government distinguished the two because domestic battery involved violence and the prosecution concerned violent offenses.

The court accepted that distinction. It did not equate an arrest with guilt or hold that every arrest justifies exclusion. Rather, it upheld the trial court’s finding that the violent nature of the alleged conduct credibly explained the different treatment.

Juror 58: A delayed explanation and asserted strategic concerns

The majority rejected the argument that the government’s initial refusal to explain necessarily established pretext. At the original proceeding, the district court had ruled against the defendants at step one. Under the majority’s analysis, the government’s step-two obligation had therefore not been triggered.

The district court nevertheless considered the refusal relevant to credibility. It accepted the government’s later assertion that disclosing its criteria could allow the defense to conserve its own strikes by anticipating which jurors the prosecution would remove.

The record contained some support for that concern: the defense struck Juror 35 after questioning disclosed his prior teaching at a Peoria school. The majority reasoned that disclosure of the prosecution’s criteria might have changed that decision. This was a hypothetical strategic consequence, not a finding that the government actually struck Juror 35.

The majority did not recognize a “strategy exception” to an existing duty to explain. It considered strategy as evidence bearing on the sincerity of the earlier refusal, made when the district court had rejected the prima facie showing.

Juror 58: Comparative treatment of teachers

The government also struck Juror 154, who had taught in Peoria for many years. The defendants argued that Juror 58’s shorter teaching tenure and residence outside Peoria made the comparison unpersuasive.

The majority regarded the shared feature as more important: both taught at schools within the relevant geographic area. It therefore upheld the finding that differences in residence and tenure did not establish pretext. An additional proposed comparison involving Juror 168 was forfeited on appeal and was not decided.

5. Precedents Cited and Their Influence

A. The constitutional framework and its thresholds

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

The controlling foundation of both opinions. It establishes the inference–explanation–determination sequence and requires attention to relevant circumstances and evidence of intent. The majority applied that framework to uphold the renewed findings; the dissent argued that its practical safeguards had not been meaningfully enforced. Both recognized that facial neutrality alone cannot resolve the ultimate discrimination question.

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

The majority used this decision to explain the inferential nature of step one. The dissent relied on its discussion of a prosecutor’s refusal to respond to judicial questioning: a non-response can strengthen the inference of discrimination. The case therefore informed both the low initial threshold and the disputed consequences of refusing to explain a strike.

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

This decision establishes that a defendant may challenge discriminatory exclusion of jurors of another race. It undermined any suggestion that the Black defendants’ challenge concerning a Hispanic juror was weaker merely because their identities differed. The dissent also invoked its recognition of jury service as an important form of democratic participation.

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

This precedent performed three functions: it made the preliminary prima facie dispute moot once the court resolved intentional discrimination; supplied the facial-neutrality standard at step two; and supported deference to trial-level credibility findings. Its mootness rule allowed the majority to avoid definitively resolving the renewed error alleged at step one.

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

The majority relied on this decision to distinguish production from persuasion. A step-two explanation need not be persuasive or even plausible, provided discriminatory intent is not inherent in it. That permissive threshold does not excuse the separate credibility inquiry at step three.

B. Credibility, comparison, and appellate review

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

This decision supplied the clear-error standard for reviewing the district court’s findings and framed step three around purposeful discrimination. It anchored the majority’s deferential review rather than a fresh appellate determination of prosecutorial motive.

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

The majority drew from its credibility factors: prosecutorial demeanor, the reasonableness of an explanation, and its relationship to accepted trial strategy. The dissent emphasized different aspects of the same decision—the importance of observing demeanor and the risk that delayed explanations become distorted. The competing uses expose the dispute over whether a paper record adequately supported credibility findings here.

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

The majority cited this decision for the proposition that determining discriminatory intent is particularly within the trial judge’s province. It reinforced the classification of the ultimate credibility determination as a factual finding entitled to substantial appellate deference.

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

The majority relied on its explanation of clear-error review and the trial judge’s superior position to evaluate credibility. The dissent relied on its procedural guidance favoring explicit treatment of all three steps and permitting courts to hear the parties’ positions before announcing their conclusions. Thus, the precedent supported deference while also emphasizing judicial responsibility for structuring a complete inquiry.

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

Quoted through United States v. Lovies, this decision supported clearly delineating each step and reserving judgment until the process is complete. Its role was procedural guidance, not a controlling resolution of the prosecution’s asserted waiver.

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

This case established why the original statement that the reasons were “race-neutral” was insufficient: courts must assess credibility, not merely categorize explanations. The dissent argued that the remand’s paper-based findings left the same essential uncertainty unresolved.

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

Cited through the dissent’s discussion of the governing circuit law, it reinforced that step three asks whether the prosecutor’s rationale is honest. Its significance was to distinguish a genuine credibility determination from acceptance of a facially permissible explanation.

C. Contemporaneous explanations, waiver, and retrospective proceedings

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

The dissent relied on the principle that prosecutors must state their actual reasons and stand or fall on those explanations. Its warnings about afterthought rationales supported the dissent’s opposition to accepting a justification first supplied after remand. It also connected effective enforcement with public confidence in judicial neutrality.

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

Called “Taylor I” in the supplied dissent, this decision instructs courts to consider the reasons initially offered rather than additional after-the-fact explanations. The dissent extended that principle to a prosecutor’s initial refusal to provide any reason. The majority did not separately analyze this authority; its contrary conclusion rested on the original step-one ruling and the mandate authorizing all three steps.

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

The dissent invoked this case’s rejection of a rationale first advanced on appeal. Its procedural setting differed from the present remand, where the explanation was submitted to the district court, but the dissent treated its insistence on the originally stated reasons as supporting a broader anti-reconstruction principle.

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

This decision concerned a defendant who lacked a sufficient opportunity to rebut the prosecution’s explanations at step three. The dissent reasoned by analogy that waiver should turn on whether a party had a meaningful opportunity to participate. Because the prosecution here repeatedly had that opportunity, she would have found waiver. This was the dissent’s extension of the decision, not a Supreme Court holding directly resolving prosecutorial waiver in this setting.

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

Called “Taylor II” in the supplied dissent, this decision required an evidentiary hearing to develop a Batson record and question the prosecutor. The dissent used it to support a hearing where a new explanation required testing. The majority did not announce a general contrary rule that evidentiary hearings are unnecessary.

D. Collective exclusion, shifting explanations, and the earlier proceedings

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

The dissent relied extensively on this decision for the actual-reasons inquiry, the prohibition against even one discriminatory strike, and trial judges’ primary responsibility to enforce Batson. It supplied the dissent’s broader understanding of the interests at stake: defendants’ rights, prospective jurors’ participation, and institutional legitimacy.

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

This decision supported the dissent’s concern that explanations shifting over time may indicate pretext. The relevant shift here concerned the justification for withholding an explanation: initially the prosecution relied on the absence of a sufficient racial showing; on remand it added concerns about revealing strategy.

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

Identified as “Stephens I,” this decision supported evaluating exclusion of people of color collectively rather than limiting suspicion to strikes against one ethnic group. The dissent considered it especially important because the district court separately assessed the Black and Hispanic prospective jurors instead of addressing the defendants’ combined-exclusion argument.

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

Identified as “Stephens II,” this decision followed remand proceedings apparently conducted on written submissions. The district court treated that history as implicit approval of proceeding without a hearing. The dissent rejected the inference because the appellate decision had not actually adjudicated whether that method was proper.

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

The prior appellate decision supplied both the governing mandate and the corrected step-one threshold. Its instruction to conduct the three-step inquiry was central to the majority’s approval of the remand’s scope. The dissent agreed on scope but disputed whether the mandate permitted revival of an explanation opportunity that the prosecution had deliberately declined.

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

This was the district court’s post-remand ruling under review, rather than an independent controlling precedent. The dissent quoted it to identify the separate step-one analyses, the treatment of strategy, and the reasoning for deciding credibility without an evidentiary hearing.

6. The Dissent: Procedural Opportunity Must Carry Consequences

Collective circumstances at step one

Judge Jackson-Akiwumi argued that the district court fragmented the defendants’ claim. Their contention concerned exclusion of both non-white prospective jurors, not two unrelated objections. Considering each strike in isolation obscured the combined circumstances supporting suspicion.

She also rejected any requirement that the court establish a prospective juror’s precise racial or ethnic identity before proceeding. In her view, the visibly non-white juror’s exclusion alongside the only other non-white panel member was sufficient to require explanation.

Waiver through repeated refusal

The dissent distinguished an absent opportunity from a deliberately rejected opportunity. The prosecution had repeatedly been invited to explain Juror 58’s exclusion and expressly chose not to do so. Judge Jackson-Akiwumi therefore would have treated its ability to provide a later explanation as waived.

Under that approach, the court would still conduct all three steps on remand, but at step three it would consider the defendants’ showing together with the prosecution’s original non-response. The dissent thus did not advocate disregarding the mandate; she disputed the admissible basis for the renewed inquiry.

Strategy could not substitute for constitutional accountability

The dissent viewed the later strategy argument as both unsupported and potentially indicative of shifting explanations. She stressed that accepted trial strategy may help establish the credibility of a stated strike rationale, but it does not itself authorize silence when an explanation is required.

The need for a hearing

The dissent considered a hearing necessary because the explanation was new, the remand occurred well after jury selection, and the prosecutor who spoke during voir dire had left the office and did not sign the government’s submission. Observing that prosecutor’s earlier insistence that a reason existed was not, in her view, an adequate substitute for testing the newly supplied reason.

Although the defendants opposed a hearing, the government requested one. The dissent emphasized the court’s independent responsibility to develop a record sufficient for a genuine credibility determination. She would have ordered a new trial, while acknowledging that the underlying strike might in fact have been nondiscriminatory.

7. Potential Impact and Limits

For remand proceedings

The decision permits consideration of an initially withheld explanation under a mandate expressly reopening the complete Batson process after an original step-one rejection. Future courts must examine the wording of the mandate and the circumstances of the earlier non-disclosure rather than assume an unrestricted right to reconstruct strike rationales.

For prosecutors and trial judges

The majority expressly encouraged courts to address all three steps where possible, even if the initial showing appears inadequate. The government also conceded that providing its reasons when originally invited would have been the better practice. The practical lesson is therefore to create a complete contemporaneous record, not to rely on withholding reasons as a litigation tactic.

For comparative-juror analysis

The decision illustrates that striking a white juror for a similar reason can support credibility, while an apparently similar retained juror may be distinguished by a case-relevant characteristic. Neither comparison is mechanically decisive: its force depends on whether the shared or differing characteristics genuinely explain the selection decision.

For geographic criteria

Case-specific proximity to alleged crimes may support a legitimate strike even in a segregated community. But the decision does not immunize geography from scrutiny as a racial proxy. Its reasoning depended on identified locations, relevant periods, and particular employment connections.

For appellate review and future disputes

The majority reinforces deferential review of supported credibility findings. The dissent identifies an important limitation to test in future litigation: whether that deference remains justified when a newly supplied rationale has never been examined through live testimony. The opinion approves the record before it; it does not establish that every retrospective paper-based inquiry is adequate.

Finally, the all-white jury provided relevant context, but its composition alone did not establish unconstitutional selection. Batson prohibits discriminatory exclusion; it does not guarantee a particular racial composition.

8. Complex Concepts Simplified

Peremptory strike

A limited opportunity to remove a prospective juror without establishing a legal basis for removal for cause. It cannot be exercised for a constitutionally prohibited discriminatory reason.

Prima facie showing

Enough initial evidence to support an inference of discrimination—not proof that discrimination actually occurred.

Burden of production

The obligation to state an explanation. At step two, this shifts to the prosecutor; the ultimate burden of proving discrimination remains with the challenger.

Facially race-neutral

An explanation that does not inherently rely on race. It may still be false or conceal discrimination.

Pretext

A stated explanation that disguises the actual reason for a decision.

Comparative-juror analysis

Comparing how jurors of different races were treated to test whether the asserted selection criterion was applied consistently.

Clear error

A deferential standard under which factual findings are overturned when the reviewing court has a definite and firm conviction that a mistake occurred.

Limited remand

A return to the lower court for specified tasks. The appellate mandate determines what may be reconsidered.

Waiver and forfeiture

Waiver generally involves intentional relinquishment; forfeiture generally involves failing to preserve an argument. The dissent saw waiver in the prosecution’s deliberate refusal to explain, while the opinion treated the Juror 168 comparison as forfeited on appeal.

Mootness of step one

Once explanations have been supplied and intentional discrimination decided, the court ordinarily need not resolve whether the challenger initially showed enough to demand an explanation.

9. Conclusion

The Seventh Circuit upheld the convictions because the remand authorized a complete Batson inquiry and the district court’s acceptance of the prosecution’s explanations was not clearly erroneous. Its most consequential holding permits an initially withheld explanation in the particular setting of an original step-one rejection followed by an express three-step remand.

The dissent exposes the decision’s central tension: allowing correction of an incomplete inquiry may also weaken the demand for contemporaneous accountability. Both opinions nevertheless underscore the soundest practice—obtain specific explanations promptly, evaluate the full circumstances, and make an express finding about whether those explanations are genuine.