The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
A jury convicted Wayne Stephens of wire fraud. For the reasons stated below, the Court grants Stephens a new trial.
On February 21, 2003, a jury convicted Stephens, an African-American man, on three counts of wire fraud for obtaining allegedly unauthorized cash advances from his employer, Accenture. The jury venire summoned for Stephens' case consisted of forty persons: thirty-one Caucasians, four African-Americans, four Hispanic-Americans, and one Asian-American. The Court excused nine members of the panel for cause (hardship or inability to be fair): eight Caucasians and one African-American. That left thirty-one prospective jurors: twenty-three Caucasians, three African-Americans, four Hispanic-Americans, and one Asian-American.
Following our rulings on the cause challenges, the Court gave each side time to prepare a list of the prospective jurors it wished to challenge peremptorily. In accordance with our usual practice, each side prepared its list without knowing which jurors the other side was challenging. Because the Court was selecting two alternate jurors, the government had seven peremptory challenges, and Stephens had eleven. See Fed. R. Crim. P. 24(b)(2) & (4)(A).
The government initially exercised five of its seven challenges, using all five to strike members of racial and ethnic minority groups: two African-Americans, two Hispanic-Americans, and one Asian-American. Stephens exercised all eleven of his challenges, striking nine Caucasians, the remaining African-American, and one of the Hispanic-Americans whom the government had stricken. The Court advised the parties that there had been an overlapping challenge. Because the government had not used all of its peremptory challenges, the Court advised the government that it could use an additional strike. The government did so, striking another Hispanic-American from the jury panel. The government did not use its seventh strike.
In short, the government used all six of the strikes it exercised to excuse members of racial and ethnic minority groups. Stephens' appointed trial counsel interposed no challenge to any of the government's peremptory strikes. As a result of the parties' peremptory challenges, the jury that heard and decided Stephens' case consisted of eleven Caucasians -- four women and seven men -- and one Hispanic-American woman. Two Caucasians served as alternates. As indicated earlier, the jury convicted Stephens on all of the charges against him.
After Stephens was convicted, his trial counsel moved for a judgment of acquittal, raising various issues but no attack on the government's use of its peremptory challenges. Later, during the Court's consideration of Stephens' motion, we raised sua sponte the issue of whether the government had exercised some or all of its peremptory challenges to exclude racial or ethnic minorities from the jury, in violation of Batson v. Kentucky, 476 U.S. 89 (1986), and its progeny. The Court initially ordered the government to explain each of its strikes. The government moved for reconsideration of that order, arguing that the Court lacked jurisdiction to raise the issue. The Court granted the government's motion and vacated the order, concluding that we lacked the authority to raise a basis for a new trial once the deadline for the defendant to file a motion for a new trial had passed. United States v. Stephens, No. 02 CR 661, 2003 WL 21439862, at *1-2, 4-5 (N.D. Ill. June 20, 2003). The Court denied the motion for new trial filed by Stephens' counsel.
New counsel was appointed to represent Stephens on appeal, and the new attorney raised the Batson issue in Stephens' opening appeal brief. The government elected to waive the argument that Stephens had forfeited his Batson objection. As a result, the Court of Appeals considered the issue on its merits. The Court of Appeals concluded that Stephens had established a prima facie case of discrimination under Batson and remanded the case to this Court for determination of the government's reasons for its peremptory challenges and evaluation of whether those reasons were a pretext for intentional discrimination. United States v. Stephens, 421 F.3d 503, 518 (7th Cir. 2005). Following remand, the parties briefed the remaining issues extensively, making the matter ripe for decision.
To determine whether a party has used a peremptory challenge to exclude a prospective juror on the basis of race or national origin, a court engages in a three step inquiry. The party alleging the violation must first make a prima facie showing of discrimination. Once such a showing is made, the party that exercised the peremptory challenge must articulate a non-discriminatory reason for the challenge. If this is done, then the party alleging the violation bears the burden of proving intentional discrimination. See Batson, 476 U.S. at 95-96. At this stage, the party alleging the violation "may offer additional evidence to demonstrate that the [other party's] proffered justification was pretextual or to otherwise establish that the peremptory strike was motivated by a discriminatory purpose." Stephens, 421 F.3d at 510 (citing Batson, 476 U.S. at 98). The showing must be made by a preponderance of the evidence. See Rodriguez v. Schriver, 392 F.3d 505, 509 n. 8 (2d Cir. 2004) (citations omitted); McKinney v. Artuz, 326 F.3d 87, 98 (2d Cir. 2003); Roberts ex. rel. Johnson v. Galen of Va., Inc., 325 F.3d 776, 780 (6th Cir. 2003) (citations omitted).*fn1
Because the Seventh Circuit has already ruled that Stephens has made the necessary prima facie showing, we begin with the government's stated approach to jury selection in this case. The government says "there were two factors that [it] considered to be particularly significant" in exercising its peremptory challenges: "(1) the juror's work experience; and (2) the juror's ability to understand the government's case." Govt's Statement of Reasons at 2.
As to its first stated criterion, the government says that [a] critical piece of the case against Stephens relied on arguments about the norms of a white collar work environment. The government believed that jurors who understood those norms from their own work experience would readily understand that no employee of Accenture could believe that Accenture permitted Stephens' actions. Conversely, the government was concerned that jurors who lacked white collar experience would be more vulnerable to Stephens' anticipated argument about what he believed Accenture permitted. Accordingly, the government used its peremptory challenges to strike, with one exception, individuals who lacked white collar work experience.
As to its second stated factor, the government notes that its case was largely circumstantial and that some of the inferences it relied upon were technical and complicated, and as a result it was "concerned that jurors who did not comprehend these arguments would conclude that the government had not met its significant burden of proof." Id. at 6. The government says that one way it assessed the jurors' ability to understand its case was to look at their level of education. The government assumed that people with college degrees would be more likely to understand all the nuances of the government's case than people who had less education. Accordingly, as a general rule, the government looked to strike individuals who lacked a college degree.
Id. at 7 (citations omitted). The government says that it "also placed significant weight on mistakes the jurors made in their written and oral responses during voir dire when assessing the jurors' ability to understand the government's case." Id. "[I]f an individual made repeated and/or glaring mistakes during voir dire, the government viewed that as compelling evidence of the juror's inability to understand the government's case." Id. at 8.
The two criteria the government cites as its primary motivating factors in exercising its peremptory challenges are both "'clear and reasonably specific,'" and are, on their face at least, race-neutral and national origin-neutral. See Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2324 (2005) (quoting Batson, 476 U.S. at 98 n.20); Hernandez v. New York, 500 U.S. 352, 360 (1991).
This is not, however, the end of the story; the Court is required to assess the government's stated reasons for its actions in determining whether the defendant has met his burden of proving that the government intentionally discriminated. See Miller-El, 125 S.Ct. at 2331. This third step of the Batson inquiry focuses on whether the government's articulated reasons hold up under close scrutiny. The Court's finding on whether the government exercised a peremptory challenge in a discriminatory manner "largely ... turn[s] on evaluation of credibility," Hernandez, 500 U.S. at 365, which "can be measured by how reasonable, or how improbable [the government's] explanations are, and by whether the proffered rationale has some basis in accepted trial strategy." Miller-El, 125 S.Ct. at 2329. As noted ...