Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 09 CR-49-LJM-KPF-1-Larry J. McKinney, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge.
Before BAUER, WOOD, and HAMILTON, Circuit Judges.
At the jury selection preceding Anthony Rutledge's criminal trial, the prosecutor used peremptory challenges to strike the only two African-American members in the venire. Suspecting that these actions violated the Equal Protection Clause, Rutledge's attorney objected to the strikes using the three-step procedure established in Batson v. Kentucky, 476 U.S. 79 (1986).
This appeal focuses solely on Batson's third step, which requires the district court to make a finding of fact re- garding the prosecutor's credibility after the prosecutor has offered a race-neutral reason for the strike (step two). Here, the district court denied Rutledge's Batson challenge after saying that the government's reasons were "nonracial," but without making any finding on the prose-cutor's credibility. As we have recently emphasized, "we cannot presume that the prosecutor's race-neutral justification was credible simply because the district judge ultimately denied the challenge." United States v. McMath, 559 F.3d 657, 666 (7th Cir. 2009). The district court must make an independent credibility determination at step three. Because we cannot find the necessary credibility finding in this record, we are unable at this stage to make an informed decision about the court's decision to deny the Batson challenge. We therefore remand the case to the district court so that it can fill this void.
During the voir dire before Rutledge's trial, the judge conducted a number of individual interviews of the venirepersons. As we have noted, the group included two African-American members, Mr. Powell and Ms. Martin. When asked whether he had any questions relating to his possible service on the jury, Powell responded as follows:
The only thing that I can think of is that only being the other African American in this courtroom, would my views be overruled, seeing that they will think I'm taking his [the defendant's] point on something?
The district judge replied that "there's no room for taking race into account at all," and Powell immediately said, in response to the court's direct question, that he could be a fair and impartial juror. The voir dire record reveals even less with respect to Martin. She was a business insurance processor; she handled endorsements for auto insurance; and she enjoyed her work. She had no questions for the court, and she affirmed that there was no reason why she could not be a fair and impartial juror. At the conclusion of the interviews, however, the government struck Powell and Martin, which prompted defense counsel's Batson challenge. In response, this exchange followed:
[THE PROSECUTOR]: First, I would state myself that I am African American, for the record; and my basis for striking Mr. Powell is his statement indicating that because he is an African American male, if he was to side with the defendant, if other jurors would listen to him.
I believe that this statement demonstrates a level of going against his credibility and also his bias toward the defendant without hearing any evidence at this point.
THE COURT: What about [Ms. Martin]?
[THE PROSECUTOR]: Your Honor, for [Ms. Martin], during the voir dire, [Ms. Martin] appeared agitated and also ...