Previously Withheld Batson Explanations May Be Considered on a Remand Authorizing All Three Steps

1. Introduction

This decision concerns the procedures necessary to enforce 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: Juror 26, a Black man, and Juror 58, a Hispanic woman. The defendants were ultimately convicted by an all-white jury.

An earlier appeal established that the district court had incorrectly applied the three-step framework of Batson v. Kentucky, 476 U.S. 79 (1986). On remand, the district court reconsidered the challenges and again found no purposeful discrimination. The principal questions in this second appeal were whether the remand permitted reconsideration of all three Batson steps, whether the prosecution could supply previously withheld explanations, and whether the district court adequately assessed their credibility.

The majority affirmed. Its central procedural holding is narrow but important: a remand expressly authorizing the complete three-step inquiry permitted consideration of explanations that the prosecution had withheld after the district court initially rejected the challenge at step one. The majority also upheld the resulting credibility findings under clear-error review. The dissent argued that this approach rewarded nonparticipation, tolerated inadequate scrutiny, and required a new trial.

2. Background and Summary of the Opinion

The original jury selection

The district court called five panels of prospective jurors. On the first panel, the government struck Juror 26, an employee of the Peoria Housing Authority, and Juror 58, a teacher of Spanish and English as a Second Language at a Peoria charter school.

The defendants objected under Batson. The district court initially rejected their objection, reasoning that they had not proved purposeful discrimination and had not established a discriminatory pattern. It also accepted uncertainty about Juror 58’s ethnicity as a reason not to treat her strike as supporting the challenge.

The court subsequently invited the government to provide race-neutral explanations without changing its initial ruling. The prosecutor supplied four explanations for Juror 26 and represented that they had been recorded contemporaneously. For Juror 58, however, the government repeatedly declined to explain its strike, maintaining that the defendants’ failure at step one eliminated any obligation to proceed further.

The first appeal and remand

In United States v. Watkins, 107 F.4th 607 (7th Cir. 2024), the Seventh Circuit identified two fundamental errors:

• Step one required too much: defendants needed circumstances supporting an inference of discrimination, not proof of purposeful discrimination or a consistent discriminatory pattern.
• Step three required more than facial neutrality: the statement, “I will find those are race-neutral reasons,” did not adequately determine whether the prosecutor’s explanations were credible.

The court otherwise affirmed the judgment and remanded for the limited purpose of correctly applying the three-step process to the two challenged strikes.

Proceedings on remand

The defendants argued that the remand was confined to step three and objected to an evidentiary hearing. The district court instead understood the mandate to authorize all three steps. It found a prima facie showing concerning Juror 26 but not Juror 58, then nevertheless completed the remaining steps for both.

The government repeated its explanations for Juror 26 and supplied an explanation for Juror 58 based on her employment at a school near locations connected to the charged crimes. Deciding the matter on written submissions, the district court credited the explanations and rejected the discrimination claims.

The appellate decision

The majority held that:

1. The remand authorized reconsideration of all three Batson steps.
2. Any renewed error at step one concerning Juror 58 no longer controlled because the government supplied explanations and the court decided the ultimate discrimination question.
3. The government satisfied its step-two burden of producing facially race-neutral explanations.
4. The district court’s findings that those explanations were genuine were not clearly erroneous.

Judge Jackson-Akiwumi dissented, identifying defects at every stage and concluding that a new trial was necessary.

3. Legal Reasoning

A. Keeping the three Batson steps distinct

The opinion reinforces the importance of separating the framework’s three different inquiries:

The original proceedings improperly demanded step-three proof at step one and treated step-two neutrality as a sufficient step-three credibility determination. The remand was intended to correct both errors.

On the second appeal, the majority did not endorse the district court’s renewed refusal to find a prima facie case for Juror 58. It acknowledged that the court may again have imposed too demanding a standard. Under the governing precedent, however, that preliminary question became moot once the prosecution explained its strikes and the district court decided whether intentional discrimination occurred.

B. The mandate permitted all three steps

The defendants’ proposed restriction to step three conflicted with the remand’s express direction to “correctly employ[] the three-step process.” The remand was limited by subject matter—the two challenged strikes—not confined to the final analytical stage.

This distinction explains why the district court could revisit the initial showing and receive explanations. It does not establish that every Batson remand necessarily permits new rationales. The authority here depended on the wording and purpose of this particular mandate.

C. Previously withheld explanations: the central disagreement

The majority reasoned that the prosecution’s original obligation to provide explanations had not arisen because the district court had rejected the challenge at step one. When the appellate mandate later authorized the full inquiry, the government could explain the strike of Juror 58. The majority also rejected the suggestion that the district court should be faulted for following that mandate.

The dissent agreed that all three steps were open on remand but distinguished that procedural authority from the separate question of waiver. In its view, the government had deliberately relinquished its opportunity to explain Juror 58’s strike by repeatedly refusing the trial judge’s invitations. A complete remand inquiry could therefore proceed, but with the government’s original non-response—not a newly developed explanation—as its step-two position.

The disagreement is consequently about more than the scope of remand. It concerns whether an erroneous step-one ruling protects a prosecutor’s deliberate refusal to participate when the judge nevertheless seeks an explanation.

D. Juror 26: case-specific connections and comparative evidence

The government offered four reasons for striking Juror 26. The court assessed each against the defendants’ claims of pretext.

The distinction between an arrest and a conviction remains important: the opinion does not establish that Juror 26 committed domestic battery. It holds that the district court could credit the prosecutor’s explanation for treating that history differently from shoplifting.

Juror 26’s assurances that he could remain impartial did not require the prosecution to retain him. A peremptory challenge need not satisfy the standard for removing a juror for demonstrated bias. It must, however, remain free of prohibited discriminatory purpose.

E. Juror 58: employment, comparators, and delayed disclosure

The credited explanation for striking Juror 58 was her teaching work near locations associated with the case and the possibility that she had encountered relevant people or acquired outside knowledge.

The defendants contrasted her with white Juror 154, who had lived in Peoria and taught there for thirty-two years. Juror 58 lived in a nearby community and had taught at the school for only two years. The majority nevertheless emphasized the shared feature: both taught at schools in the relevant geographic area, and the prosecution struck both. The differences did not require a finding of discrimination.

The government also offered concern about Juror 58’s denial of knowledge of local gang activity. The district court made no credibility finding on that explanation, and the appellate court did not rely on it. The decision therefore should not be read as approving that additional rationale. A separate comparison involving Juror 168 was forfeited on appeal.

F. Jury-selection strategy was not made an exception to Batson

On remand, the prosecution explained that its earlier silence protected its jury-selection strategy. Revealing its criteria could have allowed the defense to conserve its own strikes by leaving jurors whom the government was likely to remove.

The majority found some support for this account in the handling of Juror 35, a former Peoria teacher whom the defense struck. It treated the strategy explanation as evidence bearing on the sincerity of the government’s earlier refusal.

The majority did not recognize a general right to withhold explanations once step two is triggered. Its reasoning depended on the earlier step-one rejection. Strategy entered the analysis as a credibility consideration at step three, not as an independent exemption from disclosure.

The dissent considered that distinction insufficient. It emphasized that the government’s original justification was uncertainty about Juror 58’s race, whereas protecting strategy appeared later. That change, it argued, could itself indicate pretext. Constitutional safeguards could not yield to a desire to keep jury-selection preferences confidential.

G. Credibility findings on written submissions

The majority deferred to the district judge’s familiarity with the original voir dire, including the prosecutors’ demeanor. It also noted the defendants’ objection to an evidentiary hearing. Under clear-error review, the appellate court would reverse only upon a definite and firm conviction that the findings were mistaken.

The dissent challenged the foundation for that deference. The new explanation for Juror 58 arrived through briefing, after the passage of time; the prosecutor who had spoken during jury selection had left the U.S. Attorney’s Office and did not sign the filing. Observing his original refusal, the dissent reasoned, was not equivalent to assessing his credibility while he explained the actual strike.

The dissent also stressed that the government had repeatedly requested a hearing. Although the defendants objected under their narrower understanding of the mandate, the court retained an independent responsibility to determine whether live evidence was necessary. This aspect of the opinion is best understood as a fact-specific affirmance, not a categorical holding that written submissions always suffice for retrospective Batson review.

4. Precedents Cited and Their Influence

A. Authorities governing the majority’s analysis

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

The controlling foundation. It supplies the three-step framework, requires consideration of relevant circumstances, and distinguishes a race-neutral explanation from a credible explanation. Both opinions invoke it, but disagree over what faithful enforcement required after the prosecution’s original refusal.

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

The earlier appeal supplied the binding remand instructions and identified the original analytical errors. Its express reference to the entire three-step process was decisive for the majority’s interpretation of the district court’s authority.

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

The district court’s post-remand decision is cited principally in the dissent to document the findings under review, the government’s earlier refusal, its later strategy explanation, and the decision to proceed without a hearing. It is procedural history and the object of appellate review, rather than an independent controlling precedent.

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

The majority uses its explanation of an “inference” to describe step one’s preliminary character. The dissent invokes its discussion of prosecutorial silence: refusing to explain a strike can strengthen an existing inference of discrimination. The case thus illuminates both the low initial threshold and the possible evidentiary consequences of nonparticipation.

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

This decision establishes that a defendant may challenge a discriminatory strike against a juror of another race. It undermines any suggestion that the Black defendants could not rely on the exclusion of a Hispanic woman and supports the dissent’s emphasis on prospective jurors’ independent interests in nondiscriminatory selection.

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

This authority performs three major functions: it renders the prima facie issue moot after explanations and an ultimate discrimination ruling; defines step two by the explanation’s facial neutrality; and supports deference to trial-level credibility findings. It provides the majority’s principal doctrinal route past the disputed finding concerning Juror 58 at step one.

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

The second-step explanation need not yet be persuasive or plausible. This prevents courts from confusing production with persuasion. It does not excuse the more demanding inquiry into genuineness required at step three.

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

The opinion relies on this case for clear-error review and for identifying purposeful discrimination as the ultimate step-three question. Its significance is the distinction between reviewing factual findings deferentially and treating facial neutrality as conclusive.

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

The majority draws from its credibility factors: prosecutorial demeanor, the reasonableness of explanations, and their relationship to accepted trial strategy. The dissent invokes the same decision to emphasize the value of live observation and the risks of distortion when reasons are reconstructed later.

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

This case supports treating discriminatory-intent determinations as fact-intensive findings particularly suited to the trial judge. It reinforces the majority’s deferential appellate posture.

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

The majority cites it for clear-error review and the trial court’s superior position to assess credibility. The dissent relies on its procedural guidance: judges may receive submissions on every step before ruling, and the court controls the inquiry’s sequence. The case therefore supports deference while also informing the dispute over whether the prosecution could refuse to participate.

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

This decision established that merely labeling reasons “race-neutral” does not adequately resolve credibility. It justified the first remand. The dissent argues that the written-record proceedings still failed to provide a reliable basis for knowing whether the prosecutors were credible.

B. Additional authorities informing the dissent

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

The dissent uses this decision to connect effective Batson enforcement with equal justice, public participation, and judicial responsibility. It emphasizes that courts must determine whether stated explanations were the actual reasons and that even one discriminatory strike violates the Constitution.

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

The dissent cites it both for the prohibition on a single discriminatory strike and for the significance of explanations that shift over time. The latter principle supports scrutiny of the government’s later reliance on confidentiality of strategy.

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

This decision supports evaluating the exclusion of people of color collectively rather than dividing the challenge into isolated racial categories. The dissent invokes it to argue that striking both non-white panel members was suspicious regardless of their different racial or ethnic identities.

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

The district court treated this later decision as implicitly endorsing a paper-based remand inquiry. The dissent rejects that inference because the appellate decision did not actually decide whether dispensing with a hearing was proper. Its methodological point is that silence about a procedure is not necessarily approval of it.

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

The dissent relies on its insistence that prosecutors stand or fall on their stated reasons and its skepticism toward afterthought explanations. It supplies the central objection to allowing newly articulated rationales after a deliberate initial refusal.

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

This case instructs courts to assess the reasons initially offered rather than additional reasons supplied afterward. The dissent extends that principle to the government’s initial choice to provide no reason for Juror 58. The majority does not undertake a detailed reconciliation, instead relying on the mandate and the original step-one ruling.

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

The court there declined to consider a rationale first articulated on appeal. The dissent treats it as reinforcing the requirement that strikes stand or fall on explanations supplied during the trial-level inquiry. Its procedural setting differs from this case, where the new explanation was submitted to the district court on remand.

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

As described in the dissent, this decision rejected waiver where defense counsel lacked an adequate opportunity to contest prosecutorial explanations. The dissent reasons by analogy that the government here did waive its position because it repeatedly had that opportunity and declined it. This application to prosecutorial waiver is the dissent’s proposed extension, not a holding adopted by the majority.

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

Quoted through United States v. Lovies, this case favors explicitly delineating the three steps while reserving judgment until the full process is complete. It supports a complete record and judicial management of the inquiry.

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

Cited through United States v. Taylor, it reinforces that step three concerns the honesty of the prosecutor’s explanation. The dissent uses that principle to question whether briefing alone adequately tested the newly supplied rationale.

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

This separate, unpublished decision supplies an example of a remand requiring an evidentiary hearing so the court could question the prosecutor and investigate pretext. The dissent invokes it to show why live development of this record was necessary, not to establish that every Batson remand requires a hearing.

5. Potential Impact and Limits

More complete contemporaneous records

The clearest practical guidance is to address all three steps when possible, even if the trial judge believes the challenger has failed at step one. The government conceded that it should have supplied its explanations when originally asked, and the majority agreed that doing so was preferable. Recording reasons promptly reduces uncertainty, preserves credibility evidence, and may avoid years of additional proceedings.

Greater attention to the wording of remand orders

Future litigants will need to distinguish an order reopening the complete framework from one confined to a particular finding. This decision supports receiving previously withheld explanations under the former mandate; it does not settle the treatment of supplemental reasons under every possible remand.

Continuing scrutiny of geography-based explanations

The decision accepts specifically documented connections between a juror and locations involved in the prosecution. It does not immunize neighborhood or employment criteria from scrutiny as possible racial proxies. In future cases, the specificity of the connection, local segregation, and treatment of comparable white jurors may determine whether an explanation is credible.

Comparators remain central

The treatment of Jurors 54 and 154 illustrates that comparative analysis turns on the prosecutor’s actual criterion. A court must determine whether a claimed distinction—such as violence versus nonviolence—is genuine, rather than assuming that any difference between jurors defeats a discrimination claim.

Retrospective credibility review remains contested

The majority’s deference permits this judgment to stand, but the dissent identifies circumstances likely to matter in future disputes: elapsed time, unavailable prosecutors, explanations supplied only through lawyers’ briefs, and the absence of questioning. The opinion does not establish that these concerns are irrelevant or that a hearing is never necessary.

No requirement of same-race identity or multiple discriminatory strikes

The governing law remains that defendants may challenge strikes against jurors of another race and that one intentionally discriminatory strike is enough. Nor does the decision establish that an all-white jury itself proves discrimination. The constitutional inquiry concerns how jurors were selected, assessed in the full factual context.

6. Complex Concepts Simplified

Peremptory challenge

A limited opportunity to remove a prospective juror without proving legal disqualification. It cannot be exercised for a constitutionally prohibited discriminatory reason.

Prima facie case

An initial showing sufficient to require an explanation. At Batson step one, it is not final proof of discrimination.

Race-neutral explanation

A reason that does not inherently rely on race. It may pass step two yet still be rejected as dishonest at step three.

Pretext

An asserted reason that conceals the actual discriminatory motive.

Comparative juror analysis

Comparing how the prosecution treated jurors with similar relevant characteristics to test whether its explanation was applied consistently.

Clear-error review

Deferential review of factual findings. The appellate court does not simply substitute its preferred factual assessment; it reverses when firmly convinced a mistake occurred.

Limited remand

A return to the trial court for a defined task. “Limited” does not necessarily mean confined to a single analytical step.

Waiver and forfeiture

Waiver generally means intentionally relinquishing a position; forfeiture generally means failing to preserve it. The dissent alleged waiver through deliberate refusal, while the majority separately noted forfeiture of the Juror 168 comparison on appeal.

Mootness of step one

Once explanations have been provided and intentional discrimination has been decided, the preliminary question whether an explanation was initially required no longer determines the outcome.

7. Conclusion

The decision permits consideration of previously withheld strike explanations where the mandate authorizes a complete Batson inquiry, and it upholds the resulting credibility findings under deferential review. It neither creates a strategy exception to an operative disclosure obligation nor generally approves delayed explanations or paper-only hearings.

Its broader significance lies in the tension between retrospective correction and contemporaneous enforcement. The majority accepted the remand proceedings as sufficient; the dissent considered the accumulated procedural failures incompatible with reliable constitutional review. Both opinions underscore the strongest practical safeguard: obtain specific explanations promptly, evaluate their credibility explicitly, and preserve a complete record.