Murray Hooper, an Arizona death row inmate whose Illinois death sentence was commuted by the Governor to life imprisonment, argued that the prosecution in the 1981 Illinois trial violated Batson by using its peremptory challenges to remove all five of the black veniremembers who remained after the cause challenges. (The prosecution used six peremptory challenges against white or Asian veniremembers.) The Seventh Circuit (Easterbrook, with Hamilton and United States District Court Judge Miller of the Northern District of Indiana) found that the Supreme Court of Illinois, in ruling on the Batson claim, "made at least four errors that were unreasonable applications of the Supreme Court’s decisions, if not outright contradictions of them." Hooper v. Ryan, ___ F.3d ___, 2013 WL 4779579 (7th Cir. Sept. 9, 2013).
First, the Illinois Supreme Court held that a judge is forbidden to infer a prima facie case of discrimination from a racially disproportionate use of challenges. The panel responded: "Under Batson’s predecessor, Swain v. Alabama, statistics were the only way to show race discrimination in jury selection; nothing in the Court’s opinion suggests that it swung to the other extreme by holding that statistics could not suffice even for a prima facie demonstration." The panel also noted that later decisions, such as Miller-El v. Dretke, "show that Batson was serious in its endorsement of statistical methods." To the extent that Miller-El and other decisions elucidated Batson, they could be considered without violating Teague v. Lane.
The second error by the Illinois Supreme Court was in its conclusion that it was unlikely that race played a role in the challenges given that the prosecution excused six white or Asian prospective jurors as compared to five blacks. According to the panel, this finding "reflects confusion about how to use numbers." The real question should have been whether, "if 11 peremptory challenges had been exercised without regard to race, all five eligible black members of the 63-member venire would have been excused." The panel’s own calculation "suggests that the probability is vanishingly small."
The third legal error was in the Illinois Supreme Court’s finding that an inference of discrimination was undermined because Hooper, all three victims, and all of the principal witnesses were black. In fact, three of the principal witnesses were white. More importantly, the Illinois Supreme Court’s apparent belief that it is tolerable to use race in jury selection as long as the defendant, victims and witnesses are all of the same race "is a serious legal blunder."
Finally, the Illinois Supreme Court erred in concluding that a prima facie case can be defeated by a prosecutor’s seemingly race-neutral explanation for the strikes. "To say ‘the prosecutor gave a reason, therefore there is no prima facie case’ is to scramble the analysis in a way that potentially eliminates the need to evaluate the prosecutor’s honesty."
The case was remanded for an evidentiary hearing, should the state believe it could be fruitful 32 years after the trial. The denial of Hooper’s other claims was affirmed.