Argument of racial bias in jury selection rejected by 7th Circuit

IL file photo

The 7th Circuit Court of Appeals rejected a man’s claims of racial bias in jury selection for his felon in possession of a weapon case and affirmed a lower court’s ruling Wednesday.

Defendant-appellant Jalen Howard was indicted in August 2019 in the United States District Court for the Southern District of Indiana for possession of a firearm by a convicted felon.

Howard had been arrested in Indianapolis in after police responded to a call about a person armed with a weapon at 16th Street and Tacoma Avenue. Police searched him and found a loaded Glock .40 caliber handgun.

According to court records, Howard had previous felony convictions in Marion Superior Court for theft and battery in 2012 and 2018.

A jury found Howard guilty in May 2021.

He appealed to the 7th Circuit.

On appeal, Howard argued that his jury trial was tainted by errors that occurred during jury selection — specifically, when the district court injected the prosecutor’s race into a Batson inquiry and improperly evaluated a peremptory strike against a Black juror.

The 7th Circuit found no error in the district court’s ruling on the prosecutor’s jury selection rationale and affirmed the lower court’s decision.

Writing for the appellate court, Judge Ilana Rovner noted that Batson v. Kentucky, 476 U.S. 79, 87 (1986), was used by the U.S. Supreme Court as a system for challenging peremptory challenges to balance the need to allow prosecutors to strike jurors for any reason with the prohibition against striking jurors based on race.

Howard’s Batson challenge centered around the peremptory strike of Juror 24, a Black female juror.

During venire, the government struck the only three Black jurors on the 39-person venire panel.

On appeal, Howard didn’t challenge the strike of the first two Black jurors, but their removal left Juror 24 as the only remaining Black juror.

Howard challenged the strike as discriminatory, and the district court went through a three-step Batson analysis to evaluate the legitimacy of peremptory strikes challenged based on racial discrimination.

The 7th Circuit opinion states that the prosecutor asked jurors about their internet usage, including how many did not use the internet.

Two of the three jurors on the panel who said they did not use the internet were Black, including Juror 24. The prosecutor struck all three jurors that responded yes, because, he explained, “I do not believe people when they say they don’t use the internet.”

After the third step of the Batson inquiry, the district court summarized Howard’s counsel’s argument as follows: “Your sole justification and your persuasiveness is that the government attorney, who does happen to be African-American, has struck every single African-American on the panel.”

Howard pointed to that comment in his appeal and argued that the district court injected the prosecutor’s race into the Batson inquiry and erred in improperly evaluating the peremptory strike of Juror 24.

Rovner acknowledged that it is legal error for a judge to assume that a prosecutor of the same race as a juror would not engage in discrimination against that juror because of their shared race.

But Rovner also wrote that the district court did a thorough evaluation in its Batson analysis.

“No part of the court’s reasoning relied on the race of the prosecutor. Although it would have been better had the judge not mentioned the prosecutor’s race, there is no evidence that this harmless error infected the court’s reasoning in evaluating the Batson challenge,” Rovner wrote.

Further, Rovner rejected Howard’s assertion that the court failed to independently assess Juror 24’s demeanor, writing that the juror’s demeanor wasn’t the issue, “only the credibility and reasonableness of the prosecutor’s objective internet usage rule.”

As to the prosecutor’s use of internet usage as a proxy for truthfulness, Rovner wrote that it was not so implausible that no reasonable jurist could have found it credible.

“We see no exceptional circumstances that would cause us to depart from our usual deference to the district court’s factual findings and lead us to conclude that the court clearly erred,” she concluded.

Senior Judge David Hamilton and Judge Michael Brennan concurred.

The case is United States of America v. Jalen Howard, 21-2660.

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