United States v. Ezra Johnson

In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 20-2048, et al. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENTREVION WATKINS, et al., Defendants-Appellants. ____________________ Appeals from the United States District Court for the Central District of Illinois. No. 1:18-cr-10036 — James E. Shadid, Judge. ____________________ SUBMITTED APRIL 24, 2025 — DECIDED OCTOBER 14, 2026 ____________________ Before ROVNER, JACKSON-AKIWUMI, and LEE, Circuit Judges. LEE, Circuit Judge. In a prior appeal, the defendants in this criminal proceeding asserted, among other things, that the government had violated Batson v. Kentucky, 476 U.S. 79 (1986), by using its peremptory strikes to remove the only two non-white individuals from the panel of prospective jurors. In Batson, the Supreme Court provided courts with a three-step test to determine whether a prosecutor’s use of a peremptory 2 Nos. 20-2048, et al. challenge to strike a minority prospective juror violated the Equal Protection Clause. Id. at 93–98. We agreed with the defendants on the Batson issue but oth- erwise affirmed the judgment. In our assessment, the district court misapplied Batson’s three-step inquiry. We remanded the case to the district court for the “limited purpose of cor- rectly employing the three-step process under Batson to eval- uate the merits of the defendants’ objections to the govern- ment’s use of its peremptory challenges as to Juror 26 and Ju- ror 58.” On remand, the defendants objected to the district court’s holding an evidentiary hearing. The district court revisited its Batson analysis, made additional findings, and once again concluded that the government had not utilized its peremp- tory challenges in a racially discriminatory manner. Defend- ants again appeal. We review the district court’s findings for clear error, Snyder v. Louisiana, 552 U.S. 472, 474 (2008), and seeing none, we affirm. I Background A brief recap of the jury selection, appellate, and limited remand proceedings is in order. All thirteen defendants are Black males, and the district court called five panels of poten- tial jurors. The first panel included Juror 26, a Black man em- ployed by Peoria’s public housing authority; and Juror 58, a woman with a dark complexion who taught Spanish and Eng- lish as a Second Language at a Peoria charter middle and high school. Following voir dire of the first panel, the district court allowed counsel to exercise their peremptory challenges, and the government struck these two prospective jurors. Nos. 20-2048, et al. 3 Citing Batson, the defendants objected, arguing that the government had used its peremptory strikes to remove the only non-white minorities on the panel.1 The government countered that Juror 58’s ethnicity or race was ambiguous and that the defendants had not established a pattern of discrimi- nation. The district court agreed and held that the defendants had not met their burden of proving purposeful discrimina- tion at step one of the Batson inquiry. Later, after completing the voir dire of the first panel, the district court circled back to the defendants’ Batson chal- lenges. The court emphasized it was not changing its previous ruling but nonetheless invited the government to supplement the record with race-neutral reasons for striking both jurors. The government insisted that, although it had race-neutral reasons for striking Juror 58, it was not required to provide them in light of the defendants’ inability to establish a prima facie case of purposeful discrimination. As for Juror 26, the government provided four race-neutral reasons. The court asked whether those were the government’s reasons when it struck Juror 26, and the prosecutor responded, “[w]ithout question, your Honor,” and added that he had contempora- neously committed the reasons to paper. Based on the limited record, the district court’s ruling at step three consisted of a single sentence: “I will find those are race-neutral reasons.” On appeal, we held that, at step one, a consistent pattern of race discrimination is not a required predicate under Bat- son. 476 U.S. at 95. We also concluded that, because step one 1 While the government argues that the defendants failed to make a record of the racial composition of the venire, it is undisputed that the seated jury consisted only of white jurors. 4 Nos. 20-2048, et al. only required the defendants to present facts raising a suspi- cion that discrimination occurred, the district court erred as a matter of law by requiring the defendants to prove “purpose- ful discrimination” at that stage. Furthermore, because the government had only provided race-neutral reasons for striking Juror 26 at step two, our re- view of step three was correspondingly limited. We held, and the government agreed, under Lisle v. Welborn, 933 F.3d 705, 715 (7th Cir. 2019), the court’s statement, “I will find those are race-neutral reasons” was insufficiently specific to constitute a credibility finding as Batson requires. On account of these deficiencies, we remanded the case for the limited purpose of correctly applying Batson’s three-step examination. On remand, the defendants insisted to the district court that the proceeding was restricted to step three and objected to the government’s request for an evidentiary hearing. The district court disagreed and construed our remand order to authorize it to revisit all three Batson steps. And so, at step one, defendants again challenged the gov- ernment’s use of peremptory strikes against Juror 26 and Ju- ror 58. The parties did not dispute that Juror 26 was a Black man, that Juror 58 was a Hispanic woman, and that both were members of a protected class. The district court held the defendants satisfied their step- one burden as to Juror 26. The court explained that defend- ants had provided data as to the racial composition of the Central District of Illinois suggesting that Juror 26 might pre- sent the only opportunity for a Black man to be on the jury. As to Juror 58, the court noted that the defendants had relied solely on the fact that the government had used its Nos. 20-2048, et al. 5 peremptory strikes against the only non-white minorities in the jury panel. In the district court’s view, this was insufficient to raise an inference of purposeful discrimination. The district court then proceeded to analyze the remaining steps as to both Juror 26 and Juror 58. The government pro- vided race-neutral reasons for exercising its peremptory chal- lenges of both jurors. After addressing the defendants’ coun- terarguments, the court ultimately found each of the govern- ment’s reasons credible. As such, the court held that the gov- ernment had rebutted the defendants’ Batson challenges and that the defendants had not satisfied their burden of establish- ing purposeful discrimination. II Discussion As a preliminary matter, the district court properly as- sessed the scope of the remand. The defendants’ view that re- mand was limited to step three overlooks the stated purpose of the remand—to provide the district court with the oppor- tunity to “correctly employ[] the three-step process under Bat- son to evaluate the merits of the defendants’ objections to the government’s use of its peremptory challenges as to Juror 26 and Juror 58.” United States v. Watkins, 107 F.4th 607, 621 (7th Cir. 2024). This included all three steps of the Batson inquiry, not just step three. With that, we turn to the merits. A. Step One Under Batson’s first step, a defendant must “make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” 476 U.S. at 93–94. An “inference” is a “conclusion reached by considering other facts and 6 Nos. 20-2048, et al. deducing a logical consequence from them.” Johnson v. Cali- fornia, 545 U.S. 162, 168 n.4 (2005) (quoting Black’s Law Dic- tionary 781 (7th ed. 1999)). On appeal, the defendants take issue with the district court’s conclusion that they did not meet their burden at step one as to Juror 58. And while the district court may have once again applied too exacting a burden on the defendants, see Powers v. Ohio, 499 U.S. 400, 416 (1991) (holding that a defend- ant may raise a Batson objection even if he is of a different race that the stricken prospective juror), where “a prosecutor has offered a race-neutral explanation for the peremptory chal- lenges and the trial court has ruled on the ultimate question of intentional discrimination,” as was the case here, “the pre- liminary issue of whether the defendant had made a prima facie showing becomes moot,” Hernandez v. New York, 500 U.S. 352, 359 (1991). Accordingly, we proceed to step two of the Batson inquiry. B. Step Two At the second step, the burden of production shifts to the government, and the prosecutor must articulate race-neutral reasons for the peremptory challenge in question. Batson, 476 U.S. at 94. The second step “does not demand an explanation that is persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 767–68 (1995). Rather, “the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez, 500 U.S. at 360. On remand, the government iterated its prior reasons for striking Juror 26: (1) his prior residence in an area where inci- dents alleged in the indictment occurred; (2) his work for the Nos. 20-2048, et al. 7 Peoria Housing Authority, which manages a public housing complex near the location that the defendants’ crimes alleg- edly took place; (3) his acquaintance with a potential witness for the government, Rachel Parker; and (4) his prior arrest for a domestic battery offense. As for Juror 58, the government stated that it had struck her because she was a teacher at a school in an area with sig- nificant connections to the case and potentially had contact with individuals implicated in and knowledgeable of the case.2 In response, the defendants argued only that the limited scope of the remand prohibited the government from provid- ing any reason it had not proffered during the original voir dire. But we have already rejected the notion that the remand imposed such limits. In the end, the district court found that the government’s explanations for striking Juror 26 and Juror 58 were race-neu- tral. Consequently, the court held that the government had satisfied its burden of production at step two. Nothing in the record leads us to conclude that this reasoning was clearly er- roneous. 2 The government also explained that it was concerned that Juror 58 had denied any knowledge of gang activity in the area despite working near the place where the crimes at issue occurred. The district court did not make a credibility finding as to this proffered rationale, and our reso- lution of this appeal on other grounds renders discussion of this reason unnecessary. 8 Nos. 20-2048, et al. C. Step Three In the third and final step of the Batson test, the critical is- sue is “whether the defendant has shown purposeful discrim- ination.” Snyder, 552 U.S. at 477 (internal quotation marks omitted). The trial court must consider “the context under consideration” and determine whether the government’s race-neutral explanations are credible. Batson, 476 U.S. at 98 n.21. When assessing credibility, the trial court “undertake[s] a sensitive inquiry into such circumstantial and direct evi- dence of intent as may be available.” Id. at 93 (internal quota- tion marks omitted). Relevant factors include “the prosecu- tor’s demeanor;” “how reasonable, or how improbable, the explanations are;” and “whether the proffered rationale has some basis in accepted trial strategy.” Miller-El v. Cockrell, 537 U.S. 322, 339 (2003). And, because such an inquiry is inher- ently fact intensive, it “‘lies peculiarly within a trial judge’s province’ and, therefore, ‘represents a finding of fact of the sort accorded great deference on appeal.’” Morgan v. City of Chicago, 822 F.3d 317, 327 (7th Cir. 2016) (quoting Hernandez, 500 U.S. at 364–65); see United States v. Lovies, 16 F.4th 493, 500 (7th Cir. 2021) (“[W]e will affirm unless we arrive at a definite and firm conviction that a mistake has been made.”) (internal quotation marks omitted). On remand, the defendants objected to the district court’s holding an evidentiary hearing. As such, the court made its step-three assessment on the briefs. 1. Juror 26 Juror 26 previously resided in the neighborhood where the purported crimes occurred. He also worked for the Peoria Housing Authority, which managed the Harrison Homes Nos. 20-2048, et al. 9 public-housing project, where the defendants allegedly traf- ficked in illegal drugs and their gang maintained a sizable presence. These facts, the government told the district court, formed the basis for striking Juror 26. The defendants pointed to the racial housing segregation in Peoria and argued that striking any prospective juror be- cause he or she lived or worked on Peoria’s south side was simply a pretext for race discrimination. In support, they noted that, of the 617,546 people in the judicial district, 8.6% are Black. More to the point, however, the government’s rationale for striking Juror 26 went beyond the location of his residence; rather it was specifically tied to the facts of the case. From 2000 to 2016, Juror 26 lived in the vicinity of Livingston, Arago, and Starr Streets. During that time, three Bomb Squad shootings alleged in the indictment took place on Arago Street, and other murders, shootings, and crimes at issue occurred within blocks of Juror 26’s house. Furthermore, the government was concerned that Ju- ror 26’s employment with the Peoria Housing Authority pro- vided him with particular details about Harrison Homes, the site of several alleged shootings, that would be outside of the trial record. It is true that Juror 26 stated that his familiarity with the area would not interfere with his ability to be fair and impar- tial. He also denied being aware of any of the crimes alleged in the indictment. Nonetheless, the district court did not clearly err in finding that Juror 26’s familiarity with relevant locations was a legitimate and credible reason for the govern- ment’s use of a peremptory strike. 10 Nos. 20-2048, et al. Additionally, the government pointed to Juror 26’s famil- iarity with Rachel Parker, who was listed as a potential wit- ness and victim. The defendants insist that this reason is a fab- rication because Juror 26 did not know Parker personally or socialize with her outside of a handful of events. But the gov- ernment also struck Juror 154, a white, retired teacher, in part because she was familiar with the last names of several poten- tial government witnesses even though she did not personally know them. Given this, the district court did not clearly err in concluding that the government’s explanation was not pre- textual. The defendants insist, however, that, if anything, Juror 26’s acquaintance with Parker might have made him more sympathetic to Parker, a victim of the Bomb Squad, which would benefit the government. But note that the government also struck Juror 154, even though she might have been more favorable to the prosecution. Under these circumstances, the district court did not clearly err in finding this reason to be genuine. Lastly, Juror 26 had a prior arrest for a domestic battery offense—an arrest he described as having been “resolved.” When the defendants noted that the government had not stricken Juror 54, a white juror who was previously convicted of shoplifting, the government explained that it had used its peremptory strike against Juror 26 because, unlike Juror 54, Juror 26 was arrested for a crime of violence, and the defend- ants were on trial for violent crimes. The district court found this reason credible, and we do not think this finding clearly erroneous. Nos. 20-2048, et al. 11 2. Juror 58 Turning to Juror 58, the government explained to the dis- trict court that it had struck Juror 58 because she had taught middle-school children at a charter school that was located near the vicinity of numerous crimes that were alleged in the case. This, the government added, raised concerns that Ju- ror 58 may be knowledgeable about the relevant crime scenes as well as some of the individuals involved. For starters, the defendants believe that the government’s prior reluctance to disclose these reasons during voir dire, in and of itself, warranted a finding of pretext. During voir dire, the government steadfastly maintained that it had race-neu- tral reasons but that the law did not require disclosure, given the district court’s ruling that the defendants had failed to sat- isfy Batson’s step-one inquiry. But the district court was in a position to assess the prose- cutors’ demeanor during the original voir dire and, based on its observations, found that the government’s insistence that it had a race-neutral reason for striking the juror was credi- ble—a finding to which we owe deference. See Lovies, 16 F.4th at 500 (“Deference is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court to make credibility determi- nations.”) (internal quotation marks omitted). Moreover, on remand, the district court acknowledged that the government’s prior failure to provide an explanation as to Juror 58 raised some concern. This concern, however, was allayed by the government’s explanation that disclosing its reasons for striking Juror 58 would have unnecessarily re- vealed its jury selection strategy to the defendants. In the 12 Nos. 20-2048, et al. government’s view, this would have allowed defendants to leave prospective jurors that they might otherwise have struck with one of their own peremptory challenges. The court found this explanation reasonable. On appeal, the defendants contest this ruling, arguing that the government could always refuse to proffer race-neutral reasons on the basis that doing so would disclose its trial strat- egy. This, the defendants posit, would render Batson’s step- two inquiry illusory. Step two of the Batson inquiry, however, is not even triggered until the defense establishes a prima facie case at step one, and therefore at the time that the government initially declared it had a race-neutral reason for withholding its explanation, it was under no step-two obligation to re- spond at all. The district court considered the sincerity of the government’s statement as to its strategic reason only for the purpose of assessing the government’s credibility—at step three of the Batson analysis—as a court would do with any statements made to it. As to that credibility determination, we agree that the record provides some support for concluding that the government’s claim of a strategic reason for initially withholding explanation of its peremptory challenge was sin- cere.3 During voir dire, Juror 35 stated that he had taught at Peo- ria High School a “few years back” but affirmed that he could be fair and impartial. The court subsequently posed some 3 Our dissenting colleague believes that, by failing to provide an ex- planation to the district court during the original voir dire, the government waived the right to do so on remand. But, in this panel’s prior opinion, we directed the district court to conduct “the three-step process under Bat- son,” and we cannot fault it for complying with this direction. Nos. 20-2048, et al. 13 follow-up questions about Juror 35’s time at the high school, and when the court asked whether he was familiar with the name “Bomb Squad,” Juror 35 answered no. Immediately fol- lowing that colloquy, the defendants used a peremptory chal- lenge to strike Juror 35. Had the government revealed that one of its reasons for striking jurors was prior employment at a Peoria school, perhaps the defendants would have let Juror 35 stay knowing that the government would likely strike Juror 35 anyway.4 Lastly, the defendants point to Juror 154, a white woman on the same venire panel that the government also struck us- ing a peremptory challenge.5 In their view, the government’s striking of Juror 154 made sense, because she lived in Peoria and had taught at a Peoria elementary school for thirty-two years. By contrast, the defendants point out, Juror 58 never lived in Peoria (but in a nearby community) and had taught at the middle school for only two years. In their view, this proves that the government’s reasons for striking Juror 58 were pretextual. But the two shared an important fact—they were teachers at schools located within the relevant geo- graphic area. Thus, the district court’s conclusion that the 4 The government now concedes that, as a matter of practice, it should have provided its race-neutral reasoning during the original voir dire when asked to do so by the district court, even if it believed (and the court found) that the defendants had failed at step one. We agree that such an approach is preferable and encourage the district courts to address all three steps of Batson when possible, even if a defendant fails to meet his burden at step one, so that the record can be more complete on appeal. 5 Although the defendants also had relied on Juror 168 as a compara- tor, they have forfeited the argument on appeal. 14 Nos. 20-2048, et al. differences between Juror 154 and Juror 58 failed to support a finding of discrimination or pretext was not clearly erroneous. * * * For the foregoing reasons, the judgment is AFFIRMED. Nos. 20-2048, et al. 15 JACKSON-AKIWUMI, Circuit Judge, dissenting. “Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process.” Flowers v. Mississippi, 588 U.S. 284, 301 (2019). To that end, the Supreme Court has provided litigants a potent tool for combatting the discriminatory use of peremptory strikes on prospective jurors: Batson challenges. See Batson v. Kentucky, 476 U.S. 79 (1986). But Batson challenges are useful only when properly enforced. In this case, the district court’s superficial examination of the defendants’ Batson challenge—both initially and on remand—failed to ensure that the only two people of color in the jury pool were struck for race-neutral reasons. Because this error deprived the defendants of a fair trial, I respectfully dissent. I. Background Jury selection for the trial against the 13 Black defendants in this case began with venirepersons split into five panels. Of the 20 prospective jurors on the first panel, only two were non-white: Prospective Juror 26 was a Black man, and Prospective Juror 58 was a Hispanic woman. 1 After voir dire, the government used its peremptory strikes to remove both prospective jurors from the panel. Defendants then raised a timely Batson challenge. Recall that a Batson challenge proceeds in three steps. At step one, the defendant must make 1 Initially, the government argued that Prospective Juror 58’s ethnicity was ambiguous, and the district court agreed. In its post-remand opinion, however, the district court conceded that Prospective Juror 58 was “a His- panic woman who was a member of a protected class.” United States v. Watkins, No. 18-cr-10036-JES, 2024 WL 4132698, at *4 (C.D. Ill. Sept. 10, 2024). 16 Nos. 20-2048, et al. a prima facie showing of purposeful racial discrimination in the exercise of peremptory strikes. See Batson, 476 U.S. at 96. Next, at step two, the burden shifts to the government to come forward with a race-neutral explanation for its peremptory strikes. See id. at 97. At step three, the court determines whether the stated reasons were “the actual reasons or instead were a pretext for discrimination.” Flowers, 588 U.S. at 298. The district court denied defendants’ Batson claim at step one. The court found that defendants had not “carried [their] burden of proving purposeful discrimination” based solely on the government striking Prospective Juror 26. And the court refused to consider whether the government’s striking of Prospective Juror 58 supported defendants’ Batson challenge. “Nobody even knows what her recognizable ethnicity is,” the court demurred. Nevertheless, “in an abundance of caution,” the district court proceeded to Batson step two and asked the government to provide race-neutral reasons for striking both prospective jurors. The government gave race-neutral reasons for striking Prospective Juror 26. But it refused to do so for Prospective Juror 58. The government justified its refusal by insisting that because Prospective Juror 58’s ethnicity had not been established, defendants had failed to make their prima facie case at Batson step one, meaning the government could refuse to participate at Batson step two. All told, and as memorialized in the voir dire transcript, the district court gave the government at least three opportunities to supply race-neutral reasons for striking Prospective Juror 58. The government declined them all. See United States v. Watkins, 107 F.4th 607, 621 (7th Cir. 2024) Nos. 20-2048, et al. 17 (Watkins I) (explaining that “the government steadfastly declined to offer any explanation” as to why it struck Prospective Juror 58 “despite persistent prompting by the court”); United States v. Watkins, No. 18-cr-10036-JES, 2024 WL 4132698, at *8 (C.D. Ill. Sept. 10, 2024) (describing the government as having “stubbornly refused to explain its basis for striking Juror 58”). Not until remand did the government assert, for the first time, that its refusal was based on a concern about revealing its juror selection strategy. Defendants were ultimately tried before and convicted by an all-white jury. See Ante, at 3 n.1. They appealed and raised, among others, the Batson issue. We agreed that the district court’s Batson analysis was insufficient. At step one, we concluded the court erred by ruling against defendants for not “proving purposeful discrimination.” Watkins I, 107 F.4th at 620. We noted that “a defendant’s burden at step one is ‘light’” and that “[h]e need only indicate ‘circumstances raising a suspicion that discrimination occurred.’” Id. (citation modified). And at step three, we concluded the court erred by making a credibility determination consisting only of the statement, “I will find those are race-neutral reasons.” Id. at 621. We therefore remanded with instructions to the court to “correctly employ[] the three-step process under Batson.” Id. at 621. II. Batson Errors on Remand On remand, the district court erred at all three Batson steps. I take them in turn. A. Step One First, the district court erred by undertaking separate Batson analyses at step one—one for Prospective Juror 26 and 18 Nos. 20-2048, et al. another for Prospective Juror 58. This approach was inappropriate in light of defendants’ Batson argument. Defendants challenged the government’s use of peremptory challenges to eliminate both non-white prospective jurors, the only two people of color on the venire panel. The district court was therefore tasked with determining whether striking Prospective Juror 26 and Prospective Juror 58 “g[ave] rise to an inference of discriminatory purpose.” Batson, 476 U.S. at 94 (citation omitted). In other words, to be faithful to Batson’s command that “the trial court should consider all relevant circumstances” at step one, id. at 96, the district court needed to do more than look at each strike in isolation—it needed to analyze the strikes collectively.2 Not doing so led the court to disregard Prospective Juror 58 in its Batson analysis because, in the court’s words, defendants “essentially relied solely on Juror 58’s race to sustain [their] challenge.” Watkins, 2024 WL 4132698, at *5. In reality, defendants argued there had been a pattern of racially motivated peremptory strikes, and they supported that argument by pointing out that two of the 2 Striking even a single venireperson on account of his race violates Batson. See, e.g., Flowers v. Mississippi, 588 U.S. 284, 303 (2019) (“The Con- stitution forbids striking even a single prospective juror for a discrimina- tory purpose.” (citing Foster v. Chatman, 578 U.S. 488, 499 (2016)). I there- fore am not suggesting that the only way defendants could have pro- ceeded past step one is if the district court found a pattern of discrimina- tion. Instead, I’m noting that when a defendant makes a Batson argument based on a pattern of discriminatory strikes on minority jurors, the court must consider the strikes together, not individually as the district court did here. Nos. 20-2048, et al. 19 stricken jurors—Prospective Juror 26 and Prospective Juror 58—were people of color. Ours is a multicultural society. At times, venire panels will reflect that diversity, in numbers great and small. And lawyers will exercise peremptory strikes on venirepersons of color, sometimes for illegitimate reasons. Any indication that a prospective juror has been stricken based on his race warrants a Batson challenge. The defendant’s race does not matter. See Flowers, 588 U.S. at 301. The prospective juror’s race does not matter. See Powers v. Ohio, 499 U.S. 400, 407 (1991). A defendant can “raise a Batson claim even if [he] and the excluded juror are of different races.” Flowers, 588 U.S. at 301 (citations omitted). And a defendant may make a Batson challenge based on minorities writ large being stricken from his jury pool; a Batson challenge need not be limited to jurors of one specific race being stricken. Today, our court should have reiterated—and applied—what we explained two decades ago in United States v. Stephens: “The exclusion of nearly all persons of color from the trial of an African- American defendant looks no less suspicious to the community as a whole because the prosecutor targeted all persons of color rather than solely those of one ethnicity.” 421 F.3d 503, 514–15 (7th Cir. 2005) (Stephens I). B. Step Two On remand, the district court was correct to engage in all three steps of the Batson analysis. But I do not believe that once the case was back before it, the district court should have permitted the government to supply a new race-neutral reason at Batson step two for striking Prospective Juror 58. By refusing to do so in the first instance, the government waived its ability to explain why it struck Prospective Juror 58. 20 Nos. 20-2048, et al. At Batson step two, the government is required to “articulate” why it has chosen to exercise a peremptory strike against a minority venireperson—that is, “the prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenge[].” Batson, 476 U.S. at 98 & n.20 (citation modified). “[A] prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.” Miller-El v. Dretke, 545 U.S. 231, 252 (2005) (Miller-El II). If the government declines initially to provide its race-neutral reasons at step two, and the case is later remanded for further Batson proceedings, the government cannot offer brand-new justifications for its peremptory strike. We held as much in United States v. Taylor. There, we explained that “when ruling on a Batson challenge, the trial court should consider only the reasons initially given to support the challenged strike, not additional reasons offered after the fact.” 636 F.3d 901, 905 (7th Cir. 2011) (Taylor I) (citing Miller El II, 545 U.S. at 246–52). Similarly, in United States v. Brasher, we “declined to consider” the government’s newly provided rationale (there, on appeal) for striking a venireperson. 962 F.3d 254, 265 (7th Cir. 2020). “The problem with th[e government’s] explanation,” we held, was “that it was not voiced in the district court and instead was articulated for the first time on appeal.” Id. at 267. We agreed with the defendant “that the validity of the government’s peremptory challenges must stand or fall on the reasons provided to the district court during the Batson inquiry.” Id. (citing Miller-El II, 545 U.S. at 246, 252). Requiring the government to stand behind its initial explanation—or its initial decision to abstain—makes sense. Nos. 20-2048, et al. 21 It stops the government from conjuring up a race-neutral reason that “reeks of afterthought.” Miller-El II, 545 U.S. at 246. Moreover, it prevents prosecutors from being able to rest on reasoning that is “subject to the usual risk of imprecision and distortion from the passage of time.” Miller-El v. Cockrell, 537 U.S. 322, 343 (2003) (Miller-El I). Of course, the government’s Batson step two obligation is triggered by the defendant meeting his burden at step one. But here, despite finding that defendants had not made a threshold showing of discrimination at step one, the district court proceeded to step two. That’s what makes this case difficult: We must decide whether the government was required to provide its race-neutral reasons for striking Prospective Juror 58 at step two of the district court’s initial Batson proceedings, meaning it waived its ability to explain itself on remand. Or, given the district court’s initial, erroneous finding that defendants failed at Batson step one, was the government under no obligation to engage at step two, meaning it preserved its ability to provide race-neutral reasons for striking Prospective Juror 58 for the first time on remand? I would hold that by failing initially to engage at Batson step two as to Juror 58 (despite being asked to do so multiple times by the district court), the government waived its ability to supply race-neutral reasons for striking that prospective juror. Holding to the contrary is unworkable. It cannot be that if a district court proceeds to step two of a Batson analysis, the government can decline to participate, change its mind on remand, and be entitled to have its belated race-neutral reasons considered. 22 Nos. 20-2048, et al. The Supreme Court’s recent decision in Pitchford v. Cain supports my view. The question in Pitchford was whether a defendant waived his ability to argue, at Batson step three, that the government’s reasons for striking a venireperson were pretextual. 608 U.S. 391, 394 (2026). The Court found no waiver because “the trial court did not afford Pitchford’s counsel a sufficient opportunity to rebut the prosecutor’s proffered race-neutral reasons … .” Id. at 399. To have waived his Batson claim, Pitchford needed to “at least have [had] an opportunity to argue that the asserted race-neutral reasons were not the actual reasons—that is, the reasons were pretextual.” Id. at 401. He was not given that opportunity. Because the “trial court prevented Pitchford’s counsel from pursuing a Batson argument at step three,” Pitchford’s claim was preserved. Id. at 400 n.3. I read Pitchford as standing for the proposition that in the Batson context, waiver turns on whether a litigant, be it the defendant or the government, had the opportunity to engage in the step at issue. Applying that reasoning to this case, it’s clear the government waived its ability to supply new reasons on remand for striking Prospective Juror 58. The government was given the opportunity to engage in the Batson step at issue here, step two. Nothing stopped the government from supplying its race-neutral reasons for striking Prospective Juror 58 (as evidenced by it providing reasons for striking Prospective Juror 26). Indeed, as recorded in the voir dire transcript, the court confirmed it would “ask [the government] to make a race-neutral argument as to why 58 and 26 were excused,” and the government had multiple opportunities to provide its reasoning for striking both. But, in its own words, the government “chose not to.” At one point, the court said, “If that’s how you want to leave that, Nos. 20-2048, et al. 23 that’s understood. I haven’t made any finding, nor am I making any finding on that. If you want to offer some reasoning as to why she was excused, this will be an opportunity to do so.” The government again declined to provide race-neutral reasons for striking Prospective Juror 58 because “there ha[d] been no race finding.” It insisted it was not “appropriately in a position to give race-neutral reasons as to that juror” and therefore “would respectfully not do that unless the Court changed its finding.” This colloquy shows that far from being prevented from making its argument, the government made an affirmative choice to refuse to participate. As I see it, two undesirable consequences arise from today’s decision to affirm. First, the decision lends tacit approval to the idea that the government’s obligation at Batson step two is not triggered until there has been a so- called “race finding.” This idea has no basis in our caselaw, yet the district court embraced it. We should have rejected it as unsound. A Batson claim does not require the challenger, or the district court, to profile a venireperson in an effort to determine her exact racial or ethnic background. All that’s necessary is for a challenger to “indicate ‘circumstances raising a suspicion that discrimination occurred.’” Watkins I, 107 F.4th at 620 (quoting Stephens I, 421 F.3d at 512). In this case, that Prospective Juror 58 was clearly non-white and was struck along with the only other non-white juror on the venire panel was enough for defendants to raise a suspicion of discrimination, even without a declaration from the court as to Juror 58’s exact race. Second, today’s decision allows a prosecutor, not the district court, to dictate the terms of the court’s Batson inquiry. 24 Nos. 20-2048, et al. This, too, is inconsistent with our caselaw. For example, it’s incompatible with our decision in United States v. Lovies. In Lovies, we explained the approach district courts should take in resolving Batson challenges: When faced with a Batson challenge, a district court should first consider whether the challenger has presented evidence that is sufficient to permit an inference of racial discrimination. If the court concludes the challenger has not presented such evidence, the Batson challenge should be rejected at step one. But a district court need not pronounce its ruling at step one before the Batson inquiry proceeds to the next two steps. Rather, typically the better course will be for the district court to “delineate each of the steps explicitly, reserving judgment on the challenge until all of the steps have been performed.” A trial court may choose to terminate the Batson inquiry at either step one or step two—if it concludes the challenger or the proponent, respectively, failed to meet the applicable burden at either of those steps—but it is not obligated to do so. Instead, the district court may hear argument from each party on each step, take the parties’ submissions under advisement while proceeding to the subsequent steps, and then issue its rulings with respect to each step after it has heard each party’s position on all Batson-related issues. 16 F.4th 493, 504 (7th Cir. 2021) (quoting United States v. Cecil, 615 F.3d 678, 686 n.3 (6th Cir. 2010)). Nos. 20-2048, et al. 25 Here, the district court partially divined the best practices we announced in Lovies, at least as to Prospective Juror 26: Even though the court concluded that defendants failed at step one, it still engaged in the three-step Batson analysis for that juror. The only reason the court did not do the same for Prospective Juror 58 is because of the government’s recalcitrance. I cannot sanction this behavior. A prosecutor should not have unilateral power to terminate a district court’s Batson inquiry. Cf. Flowers, 588 U.S. at 302 (“[T]he job of enforcing Batson rests first and foremost with trial judges. … [T]rial judges possess the primary responsibility to enforce Batson and prevent racial discrimination from seeping into the jury selection process.” (citing Batson, 476 U.S. at 97, 99 & n.22)). At bottom, this case presents something like the “unlikely hypothetical” the Supreme Court contemplated in Johnson v. California, where at step two “the prosecutor declines to respond to a trial judge’s inquiry regarding his justification for making a strike … .” 545 U.S. 162, 171 n.6 (2005). This decision should have had consequences on remand. Namely, when the district court reached Batson step three, it should have considered only defendants’ argument (step one) and the government’s non-response to that argument (step two).3 The government’s non-response would have “provide[d] additional support for the inference of discrimination raised by [the defendants’] prima facie case.” Id. 3 Far from faulting the district court, see Ante, at 12 n.3, I am simply explaining that the district court could have heeded our instruction to “correctly employ[] the three-step process under Batson” on remand with- out allowing the government to supply a brand-new reason for striking Prospective Juror 58. 26 Nos. 20-2048, et al. C. Step Three I see at least two errors in the district court’s Batson step three analysis: The court excused the government’s initial refusal to engage at step two on account of “strategy,” and it made a credibility determination on the briefs. 1. Strategy Start with strategy. On remand, the government argued for the first time that its initial refusal to provide race-neutral reasons for striking Prospective Juror 58 was because doing so “would have meant disclosing part of its selection strategy during the first round of jury selection.” “That disclosure,” according to the government, “would have given the defendants an additional advantage by allowing them to leave prospective jurors that they might have otherwise removed through one of their peremptory challenges, knowing that those individuals would meet the government’s race-neutral striking criteria.” I note at the outset that this new argument deviates from the government’s earlier justification for not engaging at step two: that Juror 58’s race had not been established. This mismatch may be evidence of pretext. Cf. Foster v. Chatman, 578 U.S. 488, 507 (2016) (“[T]he prosecution’s principal reasons for the strike shifted over time, suggesting that those reasons may be pretextual.”). Even setting aside that the government’s reason for not answering changed, its argument fails for lack of support in either this court’s or the Supreme Court’s Batson caselaw. The government cites no case to support the proposition that whether a prosecutor must participate at Batson step two depends on if doing so will reveal the prosecutor’s jury selection strategy. Yet the district Nos. 20-2048, et al. 27 court accepted this argument wholesale, using it to find the government’s belated reasons for striking Prospective Juror 58 credible. Watkins, 2024 WL 4132698, at *8. I do not see how our court can affirm. Batson and its progeny are unequivocal: At step two, the government must “articulate” its reasons for making a peremptory strike. The explanation must be contemporaneous. There’s no “strategy” exception to Batson at step two. 4 Batson requires the government, when accused of racial discrimination in jury selection, to provide a race-neutral reason for exercising its peremptory strike, even if doing so may give the defendant some insight into its jury selection strategy. Why? Because the Equal Protection Clause’s guarantee that defendants and prospective jurors will not be discriminated against on the basis of race trumps the government’s desire to keep its jury selection strategy clandestine. Cf. Johnson, 545 U.S. at 172 (“The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process.” (citing Batson, 476 U.S. at 97–98 & n.20)). 2. Credibility Finally, the district court’s credibility determination. On remand, the district court refused to hold an evidentiary hearing, deciding instead to conduct its Batson analysis on the 4 It’s true that “whether the [government’s] proffered rationale [for a strike] has some basis in accepted trial strategy” bears on the court’s cred- ibility finding at Batson step three. Miller-El v. Cockrell, 537 U.S. 322, 339 (2003). But it does not follow that “accepted trial strategy” provides a basis for the government to provide no reason for striking a venireperson at Batson step two. 28 Nos. 20-2048, et al. briefs. 5 The district court cited our decision in United States v. Stephens to support its approach. Watkins, 2024 WL 4132698, at *3 (citing 514 F.3d 703 (7th Cir. 2008) (Stephens II)). Stephens II came back to our court after we remanded for the trial court to conduct a full Batson analysis, which it apparently did on the papers. See id.; Stephens II, 514 F.3d at 709. A divided panel reversed the trial court’s finding that the government committed a Batson violation, and the panel did so without passing judgment on the method the trial court used to conduct its Batson analysis. See Stephens II, 514 F.3d at 721. This, the district court surmised, amounted to our “implicitly endorsing” the Stephens trial court’s “decision to forego a Batson evidentiary hearing.” Watkins, 2024 WL 4132698, at *3. The district court simply read too much into Stephens II. The point of Batson step three is for “the trial court to assess the credibility or honesty of the prosecutor’s race-neutral rationale.” Taylor I, 636 F.3d at 905 (citing Lamon v. Boatwright, 467 F.3d 1097, 1101–02 (7th Cir. 2006)). “The best evidence often will be the demeanor of the attorney who exercises the challenge.” Miller-El I, 537 U.S. at 339 (quoting Hernandez v. New York, 500 U.S. 352, 365 (1991) (plurality opinion)). That’s why appellate review is so deferential; “a reviewing court … 5 The majority opinion observes that the defendants “objected to the district court’s holding an evidentiary hearing” on remand. Ante, at 2, 8. That’s true, but there’s more to the story. The defendants believed that our prior opinion limited the district court’s Batson analysis on remand to step three, which likely explains why they thought an evidentiary hearing was unnecessary. Further, unlike the defendants, the government did ask the district court to hold an evidentiary hearing—multiple times. The court denied these requests. Further still, no matter the parties’ positions, the district court had an independent obligation to determine whether an ev- identiary hearing was necessary. Nos. 20-2048, et al. 29 analyzes only the transcripts from voir dire” and is therefore “not as well positioned as the trial court is to make credibility determinations.” Id. In this case, the logic of appellate deference falls flat. The district court received the government’s newly provided reasons for striking Prospective Juror 58 via a brief on remand. Two years had passed since jury selection. The prosecutor who spoke on the government’s behalf at voir dire—the person who gave the reasons for striking Prospective Juror 26 and refused to provide reasons for striking Prospective Juror 58—was not a signatory to the filing because he had left the U.S. Attorney’s Office. Nevertheless, the district court accepted the government’s new reasons, deemed them race neutral, and found the government credible—all on the papers. On these facts, the district court needed to hold an evidentiary hearing to resolve defendants’ Batson claim. Cf. United States v. Taylor, 277 F. App’x 610, 612–13 (7th Cir. 2008) (Taylor II) (holding that “an evidentiary hearing [was] needed for the court to properly develop the record and address th[e] Batson challenge,” so the court could “question the prosecutor” at step three and see if his reasons were pretextual). Under the approach the district court took here, it simply could not “determine whether the prosecutor’s proffered reasons [were] the actual reasons” for striking Prospective Juror 58. Flowers, 588 U.S. at 303. And we are in the same position we were when defendants initially appealed: “we have no way to know whether the [prosecutors] were credible.” Lisle v. Welborn, 933 F.3d 705, 715 (7th Cir. 2019). 30 Nos. 20-2048, et al. III. Conclusion When correctly employed, Batson serves multiple purposes. It safeguards defendants’ rights “to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.” Batson, 476 U.S. at 85–86 (citations omitted). It ensures members of the public have an opportunity to serve on juries, which, besides voting, is “the most substantial opportunity that most citizens have to participate in the democratic process.” Flowers, 588 U.S. at 293 (citing Powers, 499 U.S. at 407). And it enhances public confidence in the courts. See, e.g., Miller-El II, 545 U.S. at 238 (“[T]he very integrity of the courts is jeopardized when a prosecutor’s discrimination invites cynicism respecting the jury’s neutrality and undermines public confidence in adjudication.” (citation modified)). It very well could be that the government struck Prospective Juror 58 for nondiscriminatory reasons. But the compounding Batson errors in this case—there being errors at all three steps of the district court’s Batson analysis, and errors both before and after remand—call the legitimacy of the entire proceeding into question. The only cure for the Batson violations here is to remand this case for a new trial. Because my colleagues disagree, I respectfully dissent.