United States v. Grant ( 2009 )

BYE, Circuit Judge,

concurring in part and dissenting in part.

The majority holds the district court properly sustained the government’s objections to Janice Grant’s peremptory strikes of jurors Kathryn Ham, Elisabeth Smith, and Susan Fox. Because the district court applied an improper standard when evaluating the strikes, and erroneously sustained the government’s objections as to jurors Ham and Smith, I respectfully dissent. I concur in the result with respect to juror Fox, and join the majority’s opinion affirming the exclusion of Dawn Hare’s testimony.

During jury selection, Grant exercised nine of her ten peremptory challenges to remove women from the jury.⁸ The government objected, arguing Grant exercised the challenges on the basis of gender, in violation of the principles announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After concluding the government had stated a prima facie Batson violation, the district court told defense counsel: “And so Til ask that you outline the jurors that you have challenged, and generally the reason, and then I will determine the reasonableness for each challenge.”

After defense counsel stated his reasons for striking the jurors, the court focused its attention on the challenges exercised against jurors Smith, Fox, Ham, and Joan Pearson. As to those four, counsel’s reasons for striking the jurors can be summarized as follows:

Smith: Substantial ties to the south giving rise to possible socioeconomic and racial overtones. A conservative educational background with the possibility of extremely conservative views. Husband managed a jewelry store and family was financially well off.

Fox: Resided in a small Nebraska community with a small minority population and would not relate to a minority defendant. Divorced.

Ham: Did not complete the pre-mailed juror questionnaire and counsel had no information from any other source, e.g., internet searches, about Ham. Demean- or suggested she reacted negatively when the jury was told the case involved issues of domestic violence, alcohol and drug use/abuse. Divorced.

Pearson: Negative body language. Elementary school teacher.

In response, the government noted Smith, Fox, Ham, and Pearson had not been asked any questions.⁹ As to Fox and Ham, the government noted divorced male jurors had not been struck. As to Fox, the government claimed the community where she lived boasted a meat packing plant which employed a large contingent of Hispanic workers, and male jurors from the same community had not been struck. The government offered no additional argument against defense counsel’s proffered reasons for striking Smith and Pearson.

The court overruled the objection as to Pearson, noting that although she was not questioned, “I have a bias on school teachers, so I’m going to let you strike all the school teachers.... ”

As to Ham, the court rejected her status as a divorcee as a basis for the strike, noting divorced males were not struck. It noted counsel was also relying on Ham’s demeanor, but failed to make any findings or to further address the claim. Finally, the court omitted any discussion of Ham’s failure to complete and return the court’s juror questionnaire.

Next, despite the government’s failure to address any of defense counsel’s reasons for striking Smith, the court upheld the objection, stating: “With respect to Elizabeth Smith, I don’t buy ties to the southern part of the United States. She was not even talked to by anybody....” The court failed to address defense counsel’s other stated reasons for striking Smith, i.e., conservative views, attendance at a conservative high school, husband’s occupation or the family’s financial status. The court also failed to explain how not questioning Smith rendered the stated reasons pretextual, when the failure to question Pearson did not.

Finally, the court sustained the objection as to Fox, finding she resided in a community with a significant Hispanic/minority community, and divorced males as well as males from the same community on the jury had not been struck.

The district court concluded by stating: “I also have to say that one of the primary reasons for my concern here is that there were no questions asked of any of the three, of these three jurors.” Defense counsel explained his reasons for not questioning all the jurors, indicating the court offered the parties limited time to personally conduct voir dire, and much non-verbal information was gained by observing potential jurors. At no point did the district court elaborate on why the failure of counsel to ask specific jurors questions was germane to the Batson analysis.

Grant argues the district court misapplied Batson by requiring her to prove the challenges were reasonable, instead of requiring the government to prove purposeful discrimination, and clearly erred in concluding her challenges were a pretense for gender discrimination.

The Equal Protection Clause of the United States Constitution prohibits using peremptory challenges to exclude jurors on the basis of race, Batson, 476 U.S. at 89, 106 S.Ct. 1712, and in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 141-42, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the prohibition was extended to gender-based challenges. To prove purposeful discrimination in the use of a peremptory challenge, the party opposing the strike must first make a prima facie case of impermissible discrimination. If such showing is made, the proponent of the strike must suggest a gender-neutral explanation. At the second step, the reason given does not have to be persuasive or even plausible. ‘“[T]he issue is the facial validity of the ... explanation. Unless a discriminatory intent is inherent in the ... explanation, the reason offered will be deemed [gender] neutral.’ ” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). If a gender-neutral explanation is offered, the trial court must decide whether the party objecting to the strike has proved purposeful discrimination. Elem, 514 U.S. at 767, 115 S.Ct. 1769; United States v. Jones, 245 F.3d 990, 992 (8th Cir.2001).

Typically, once the party making the peremptory challenge states a gender-neutral reason under the second part of Bat-son, the opposing party “may then attempt to prove the facially valid reason is mere pretext and that the real reason for the strike was discrimination.” United States v. Elliott, 89 F.3d 1360, 1365 (8th Cir.1996) (citing Elem, 514 U.S. at 767, 115 S.Ct. 1769). “[T]he ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the opponent of the strike.” Moran v. Clarke, 443 F.3d 646, 652 (8th Cir.2006) (quoting Elem, 514 U.S. at 768, 115 S.Ct. 1769).

This court has emphasized the need to “make[ ] detailed findings on the record in support of a ruling on a peremptory challenge under Batson.” Id., at 653 (citing U.S. Xpress Enter., Inc., v. J.B. Hunt Transp., Inc., 320 F.3d 809, 814 (8th Cir.2003)). Such view is entirely consistent with Supreme Court precedent stressing the importance for trial courts to carefully consider all evidence bearing on the issue. See Batson, 476 U.S. at 96, 106 S.Ct. 1712 (“In deciding whether the defendant has made the requisite [prima facie] showing, the trial court should consider all relevant circumstances.”). As to the issue of discriminatory intent — -the third step in a Batson challenge, “Batson ... requires the judge to assess the plausibility of [the striking party’s] reason in light of all evidence with a bearing on it.” Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2331-32, 162 L.Ed.2d 196 (2005) (citation omitted). “In deciding if the defendant has carried his burden of persuasion, a court must undertake a ‘sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’ ” Batson, 476 U.S. at 93, 106 S.Ct. 1712 (quoting Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)).

Grant argues the district court’s analysis of the Batson challenges placed an impermissible burden on her. She contends the court correctly required her to articulate non-discriminatory reasons for the strikes, but, instead of then requiring the government to prove pretext or purposeful discrimination, it required Grant to prove the strikes were objectively reasonable. In support of her argument, Grant focuses on two statements the court made during its discussion of the Batson challenges. First, after determining the government met its burden under step one to make a prima facie showing of discrimination, the court directed defense counsel to “outline the jurors that you have challenged, and generally the reason, and then I will determine the reasonableness for each challenge.” Next, Grant cites the court’s discussion of juror Smith, where it simply stated: “With respect to Elizabeth Smith, I don’t buy ties to the southern part of the United States.”

“The Supreme Court has explained that when it established the requirement that the proponent of a strike give a ‘clear and reasonably specific’ explanation of the legitimate reasons for exercising a peremptory challenge, Batson, 476 U.S. at 98, 106 S.Ct. 1712, it was not requiring ‘a reason that makes sense, but a reason that does not deny equal protection.’ Purkett, 514 U.S. at 769, 115 S.Ct. 1769.” United States v. McFerron, 163 F.3d 952, 955 (6th Cir.1998). Therefore, the proffered reasons need not be “persuasive” or even “plausible,” and a trial court errs by requiring the proponent of the strike to prove the reasons are reasonable or persuasive. Id.

In McFerron, as in this case, the government objected, on the basis of gender, to several peremptory challenges exercised by defense counsel. Id. at 953. The trial court then called upon defense counsel to provide non-discriminatory explanations for the strikes. Id. In sustaining the government’s Batson challenge, the district court characterized the defense’s various reasons as “not very persuasive” and insufficient to carry the defendant’s “burden of persuasion.” Id. at 953-54. On appeal, the Sixth Circuit concluded “the district court erred ... by consolidating the second and third steps of the Batson analysis and imposing the burden of persuasion on [defendant].” Id. at 955. “Only when deciding whether the opponent of the strike has proved purposeful discrimination may a court consider the persuasiveness of the purported justification and choose to disregard an explanation that is, for example, implausible, silly or superstitious and may thus be a pretext for purposeful discrimination.” Id.

Here, the district court allowed the government to offer arguments in favor of finding purposeful discrimination, but those arguments failed to address many of the defendant’s stated reasons. For example, in addition to striking Ham because she was divorced, defense counsel offered her demeanor and failure to complete and submit the court’s juror questionnaire as additional bases. See, e.g., United States v. Coleman, 52 F.3d 743, 746 (8th Cir.1995) (upholding government’s use of peremptory challenge based on belief jurors were disinterested). The government offered no evidence or argument to refute those additional facially neutral reasons. And in concluding defense counsel failed to offer a “reasonable” basis for the challenge, the district court merely mentioned counsel’s reliance on demeanor, but made no findings and offered no analysis of the issue. As for her apparent disinterest, as reflected by her failure to complete the questionnaire, the court omitted any discussion of the reason whatsoever.

The majority correctly points out that the government rebutted one of defense counsel’s stated reasons by demonstrating divorced male jurors were not struck. If this was the only reason offered for striking juror Ham, I would affirm the district court. What the majority fails to adequately explain is the government’s failure to rebut, and the district court’s failure to address, defense counsel’s additional nondiscriminatory reasons. The government does not dispute the factual bases for the strike, i.e., Ham’s failure to complete the juror questionnaire and defense counsel’s observations of her demeanor. Additionally, the district court made no contrary findings; it simply omitted any reference to either of these additional reasons in sustaining the government’s objection. To the extent the majority acknowledges these additional reasons, it apparently concludes the district court reasonably concluded the failure to ask Ham any questions rendered the reasons pretextual. In so holding, the majority ignores the district court’s willingness to overlook the failure to question juror Pearson, when it concluded the reason proffered for striking her was reasonable because it too “ha[d] bias on school teachers.”

The same is true of Smith. Defense counsel offered several non-discriminatory reasons for the strike, i.e., conservative views, conservative education, husband’s profession, and the family’s financial status. The government failed to offer any argument suggesting the reasons were not gender neutral or evidence calling the factual bases for them into question. The district court’s analysis simply concluded the court did not “buy ties to the southern part of the United States[,]” and the other facially neutral reasons were ignored. In other words, without requiring any meaningful argument from the government, the district court concluded the strike was unreasonable.

The error in the district court’s analysis is two-fold. First, the court expressly stated it was requiring defense counsel to shoulder the burden of proving the “reasonableness for each challenge.” The district court’s improper allocation of the burden of proof is evidenced by its failure to proceed to step three, thereby obviating any requirement the government meet its burden of proving purposeful discrimination. Several valid facially neutral reasons were offered for striking Ham and Smith, to which the government failed to respond. Without requiring any response from the government, and without ever mentioning those asserted bases, the district court simply concluded defense counsel’s reasons were unreasonable. See United States v. Carr, 67 F.3d 171, 176 (8th Cir.1995) (overruling Batson challenge where government offered non-discriminatory reasons for the strike and the defense “did not attempt to persuade the district court that the government’s reasons were pretextual.”).

The majority dismisses McFerron as in-apposite, because the district court there specifically stated the defense had not carried its burden of persuasion. In this case, the district court stated it would determine whether Grant’s stated reasons were reasonable, and without input or argument from the government, found them unreasonable. Thus, it is clear the district court placed the burden of proof on Grant, and the majority’s attempt to distinguish McFerron fails.

Second, even assuming the court did not improperly place the burden of proof on Grant, the transcript demonstrates it failed to conduct a complete Batson analysis of several of the reasons offered by defense counsel. As noted above, numerous facially valid reasons were given for striking Ham and Smith, which were never mentioned or analyzed by the district court. Remarkably, the majority concludes

The district court had the government rebut the validity of the reasons proffered by Grant’s counsel for the strikes. Finally, only after hearing the government’s rebuttal and giving Grant’s counsel an additional opportunity to respond ... the district court made specific findings and ruled on the objection for each of the ... jurors struck by Grant.

My review of the record discloses the opposite is true. The transcript demonstrates the government failed to respond to many of the stated reasons for striking Ham and Smith, and, contrary to repeated admonitions by this court directing district court’s to make detailed findings explaining decisions on Batson challenges, the district court made no findings and conducted no analyses of those reasons.

The majority omits any reference to the government’s and district court’s failure to address several facially valid reasons offered for striking Ham and Smith. Instead, it concludes “the failure of Grant’s counsel to ask [the jurors] any questions during voir dire substantiates the district court’s ruling.” I find this reasoning singularly unsatisfying and hopelessly unconvincing. Four jurors, one of them a school teacher, were not questioned. As to Ham, Fox, and Smith, the court stated the lack of questioning was a “primary” reason for finding the strikes discriminatory. As to the unquestioned teacher, however, the court readily denied the government’s objection because it shared defense counsel’s “bias” against teachers. In other words, it was unnecessary to question the teacher because the district court’s shared bias made the strike reasonable. This is not the analysis required by Batson.

The record demonstrates Grant offered numerous facially valid reasons for striking jurors Ham and Smith, but the district court improperly placed the burden of proof on her or failed to analyze several of the reasons. While Batson affords district courts broad discretion when ruling on such objections, today’s decision establishes as the law of this circuit the principle that a failure to ask a juror questions renders a strike supported by non-discriminatory reasons presumptively pretextual. Nothing in Batson and subsequent cases supports such a rule. Accordingly, I respectfully dissent from the majority’s opinion affirming the district court’s Batson ruling with respect to jurors Ham and Smith. I concur in the result as to juror Fox, and concur in the majority’s decision affirming the exclusion of Dawn Hare’s testimony.

8 . Grant also struck one female alternate juror but the government withdrew its objection to the alternate.

9 . The district court conducted its own voir dire and then allowed counsel limited time to ask additional questions. The four jurors were not asked questions by counsel but presumably were questioned by the court.