Appellate Case: 23-5095 Document: 010111063437 Date Filed: 06/11/2024 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 11, 2024
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ALONZO CORTEZ JOHNSON,
Petitioner - Appellee,
v. No. 23-5095
(D.C. No. 4:16-CV-00433-TCK-CDL)
WILLIAM “CHRIS” RANKINS, (N.D. Okla.)
Respondent - Appellant.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:16-CV-00433-TCK-CDL)
_________________________________
Tessa L. Henry, Assistant Attorney General (Gentner F. Drummond, Attorney
General, with her on the brief), Oklahoma Office of the Attorney General,
Oklahoma City, OK, for the Respondent - Appellant.
James L. Hankins, Law Office of James L. Hankins, Edmond, OK, for the
Petitioner - Appellee.
_________________________________
Before PHILLIPS, MORITZ, and EID, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
In 2021, a panel of this court reviewed state prisoner Alonzo Cortez
Johnson’s petition for federal habeas relief under 28 U.S.C. § 2254. Johnson v.
Martin,
3 F.4th 1210, 1216 (10th Cir. 2021), cert. denied,
142 S. Ct. 1350
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(2022). Johnson (a Black man) asserted that he was being held in violation of
his constitutional rights because the state court had failed to follow the
appropriate procedural steps under Batson v. Kentucky,
476 U.S. 79 (1986). We
reviewed Johnson’s Batson claim de novo and agreed that the state court had
bungled Batson’s procedural framework after Johnson alleged that the
prosecutor had exercised peremptory strikes based on race. Johnson, 3 F.4th at
1225–27. To remedy this error, we remanded the case with instruction for the
district court to hold a Batson reconstruction hearing if doing so would not be
impossible or unsatisfactory. Id. at 1227. Otherwise, we ordered the court to
grant Johnson conditional habeas relief, unless the state granted him a new trial
within 120 days. Id.
On remand, the district court granted Johnson conditional habeas relief
because it decided that holding a Batson reconstruction hearing would be “both
impossible and unsatisfactory.” Johnson v. Rankins, — F. Supp. 3d. —, 2023
WL 5055491, at *6 (N.D. Okla. Aug. 8, 2023). That is the decision on review:
Did the district court abuse its discretion in assessing that a Batson
reconstruction hearing would be “impossible or unsatisfactory” in this case?
We conclude that, yes, this was an abuse of discretion, and so we reverse and
remand to the district court to hold a Batson reconstruction hearing.
BACKGROUND
Johnson was convicted of first-degree murder and conspiracy to commit
first-degree murder in Oklahoma state court. Those facts are laid out in this
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court’s prior opinion. See Johnson, 3 F.4th at 1217. After his conviction,
Johnson exhausted his state remedies for postconviction relief to no avail. He
next sought federal habeas relief from the district court under § 2254. The
district court denied Johnson’s § 2254 petition and his request for a certificate
of appealability (COA). Johnson then sought a COA from this court, which we
granted in part.
28 U.S.C. § 2253(c)(1)(A). The partially granted COA allowed
Johnson to appeal the district court’s denial of his Batson claim. 1
We reviewed Johnson’s Batson claim under the confines of the
Antiterrorism and Effective Death Penalty Act (AEDPA). AEDPA erects a
procedural hurdle that a state prisoner must clear before a federal court may
resolve his claim on the merits. 28 U.S.C. § 2254(d). Johnson had to show
either that the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law” or that the state
court had made “an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
Id. Johnson showed that the
Oklahoma Court of Criminal Appeals (OCCA) had failed in both respects. 2
1
The COA was also granted for Johnson’s claims alleging the unfair
introduction of gruesome evidence at trial, juror misconduct, and cumulative
error. Those issues were resolved in this court’s previous opinion. Johnson v.
Martin, 3 F.4th 1210, 1228–36 (10th Cir. 2021), cert. denied,
142 S. Ct. 1350
(2022).
2
First, the OCCA relied on an unreasonable factual determination by
“purport[ing] to approve the trial court’s acceptance of the prosecutor’s
multiple race-neutral reasons for his strikes,” when in fact “the trial court
(footnote continued)
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Johnson, 3 F.4th at 1224–25. Because the OCCA proceedings resulted in “an
unreasonable application of Batson” and an “unreasonable factual
determination to reject Johnson’s Batson challenge,” we proceeded to review de
novo Johnson’s Batson claim.
Id.
Batson establishes a tripartite burden-shifting framework for courts to
detect racial discrimination in the exercise of peremptory challenges. 476 U.S.
at 96–98. First, the defendant bears the burden to make a prima facie case that
prospective jurors have been excluded based on their race. Flowers v.
Mississippi, 588 U.S. 284, 298 (2019); see Johnson v. California,
545 U.S. 162,
168 (2005) (stating that a prima facie case is established “by showing that the
totality of the relevant facts gives rise to an inference of discriminatory
purpose” (citation omitted)). Second, if that showing is made, the burden shifts
to the prosecution to provide a race-neutral reason for the objected-to strike(s).
Flowers,
588 U.S. at 298. Third, the court “determine[s] whether the
prosecutor’s stated reasons were the actual reasons or instead were a pretext for
discrimination.”
Id.
Johnson’s habeas petition alleged that the trial court had erred at
Batson’s second step: the trial judge never prompted the state to give race-
neutral justifications for six peremptory strikes that Johnson challenged. During
accepted only one such reason . . . and merely speculated as to the other[s].”
Johnson, 3 F.4th at 1224. Second, “the OCCA’s reliance on the trial court’s sua
sponte speculation about the prosecutor’s reasons was an unreasonable
application of Batson.”
Id. at 1225.
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voir dire, Johnson asserted a Batson challenge after the state’s sixth peremptory
strike. Of the state’s previous five strikes—excluding prospective jurors Tawil,
Dickens, de Wassom, Wilson, and Carranza—Johnson perceived that four were
minorities. Johnson calculated that those strikes, plus the sixth strike against
prospective juror Martinez (another perceived minority), created “a pattern . . .
of striking all minorities off th[e] jury.” App. vol. I, at 229. At that point, the
trial judge jumped in. Id. Preemptively reading the Batson tea leaves, the trial
judge stated that he saw no discriminatory pattern in the state’s strikes because
Martinez was “hardly involved in the process” and Carranza and de Wassom
both spoke English as their second language. 3
Id. at 229–30.
Petitioning this court for habeas relief, Johnson alleged that the trial
court’s erroneous application of Batson violated his Fourteenth Amendment
rights under the Equal Protection Clause. Johnson, 3 F.4th at 1216, 1219; see
Powers v. Ohio,
499 U.S. 400, 404 (1991) (“Although a defendant has no right
to a petit jury composed in whole or in part of persons of the defendant’s own
race, he . . . does have the right to be tried by a jury whose members are
selected by nondiscriminatory criteria.” (cleaned up)). Johnson contended that
3
The trial judge asked the state to give a race-neutral reason for only one
of its strikes: the second one against juror Dickens—one of the few Black
prospective jurors in the venire pool. App. vol. I, at 228. The state obliged,
explaining that Dickens’s Ph.D. raised “concern[s]” about his potential to be
“too exacting.” Id. But the state never volunteered any race-neutral reasons for
the other five stricken jurors, after the trial judge had interjected with his own.
See
id. at 229–30. Johnson never objected to the trial judge’s interjection or his
not asking the state for race-neutral explanations.
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the state’s lopsided exercise of peremptory strikes toward venirepersons of
color satisfied his burden at Batson step one, yet the trial court never proceeded
to step two. Johnson, 3 F.4th at 1219–20, 1222–23. We agreed that Johnson’s
initial showing was “more than sufficient to require [the] trial court to proceed
to step two of the Batson procedure.” Id. at 1226–27. Because it never did, we
established that the trial court had misapplied Batson. Id. at 1227.
But that error wasn’t enough to entitle Johnson to habeas relief. Id. Due
to the trial court’s lapse at Batson step two, “the State ha[d] never presented
evidence of the prosecutor’s actual, nondiscriminatory reasons for striking the
five minority jurors.” Id. Thus, no court had ever evaluated those reasons to
determine if the strikes were racially motivated and therefore if Johnson’s
constitutional rights had been violated. See id.; see also Hernandez v. New
York, 500 U.S. 352, 360 (1991) (“Proof of racially discriminatory intent or
purpose is required to show a violation of the Equal Protection Clause.”). So
we decided that the appropriate remedy was to reverse the district court’s
denial of Johnson’s habeas petition and to remand for the district court to hold
a Batson reconstruction hearing, giving the state a chance to satisfy its
obligations at Batson step two.
Id. Given “the passage of over eight years since
Johnson’s trial,” we remanded on an “impossible or unsatisfactory” standard.
Id. That is, we directed the district court to hold the Batson reconstruction
hearing only if the court determined that doing so would not be “impossible or
unsatisfactory.”
Id. If the court decided otherwise, we instructed, then the court
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should instead grant Johnson habeas relief conditional on the state’s not
granting him a new trial within 120 days. Id.
On remand, the district court surmised that it would be premature “to
decide whether a hearing will be impossible or unsatisfactory” because the
court “lack[ed] the circumstantial information necessary to contextualize the
prosecutor’s stated reasons for the challenged strikes.” App. vol. VII, at 2047.
For example, the court balked at the record’s missing information about the
racial makeup of the venire pool, “much less, the race of five of the six jurors
the prosecutors attempted to strike.” Id. To fill in these gaps, the court ordered
the parties to conduct discovery that would facilitate the court’s
“reconstruct[ing] the relevant circumstances bearing on the prosecutor’s use of
peremptory strikes at the time they were made.” Id. at 2050.
The parties completed discovery and filed supplemental briefs with the
district court. Discovery comprised the state’s contemporaneous, handwritten
notes from voir dire; the prospective jurors’ driver’s licenses; an affidavit from
the Oklahoma Attorney General’s Office with information about each juror’s
self-identified race, ethnicity, and English-language proficiency; secondary-
source research on the meaning of “race”; and depositions conducted with now-
retired Judge Tom Gillert (then state trial judge), now-Judge Doug Drummond
(then assistant prosecutor), Mark Lyons (defense attorney), and Tim Harris
(lead prosecutor).
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Despite this evidence, the district court concluded that “it would be
impossible and unsatisfactory to hold a meaningful Batson reconstruction
hearing.” Johnson, 2023 WL 5055491, at *1. The court acknowledged that,
“[a]rguably,” proceeding to Batson’s second step would not be “impossible or
unsatisfactory” considering the evidence adduced during discovery.
Id. at *6.
But the court concluded that moving to Batson’s third step would be
impossible.
Id. at *7. Because even if Harris’s “stated reasons” for each
disputed strike were his “actual reasons,” the court reasoned that it could not
“sufficiently reconstruct all relevant circumstances in a way that would permit
[the court] to meaningfully apply Batson’s third step.”
Id. On that basis, the
district court entered judgment granting Johnson conditional habeas relief,
according to our remand instructions.
Id. at *8.
William “Chris” Rankins, proceeding in his official capacity as Acting
Warden of the Great Plains Correctional Center, timely appealed the judgment
on behalf of the state. Exercising jurisdiction under 28 U.S.C. §§ 1291 and
2253, we reverse and remand. 4
STANDARD OF REVIEW
We review the district court’s decision to deny an evidentiary hearing for
an abuse of discretion. See Marquez v. City of Albuquerque, 399 F.3d 1216,
4
This court granted a motion by the appellant to stay pending appeal the
district court’s order that conditionally granted Johnson habeas relief and
ordered his release from state custody unless the state granted him a new trial.
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1224 (10th Cir. 2005). Of that ilk is the decision to hold a Batson
reconstruction hearing. See, e.g., Dolphy v. Mantello, 552 F.3d 236, 240 (2d
Cir. 2009).
DISCUSSION
Our focus here is singular. We consider whether the district court abused
its discretion in declining to hold a Batson reconstruction hearing under an
“impossible or unsatisfactory” standard. Johnson, 3 F.4th at 1227 (quoting
Jordan v. Lefevre,
206 F.3d 196, 202 (2d Cir. 2000)). Principally, this standard
asks the district court to consider whether the “passage of time” or “other
circumstances” would inhibit the court’s ability to hold a reconstruction
hearing. See
id. (quoting same); see also Snyder v. Louisiana,
552 U.S. 472,
486 (2008) (ascertaining that, “more than a decade after petitioner’s trial,”
there was no “realistic possibility” of reconstructing the “subtl[ties]”
surrounding the prosecutor’s motives to strike); United States v. McMath,
559
F.3d 657, 666 (7th Cir. 2009) (remanding “for the district judge to make
findings of fact” on the Batson issue, unless “the passage of time preclude[d]
the district court from [doing so]”); Riley v. Taylor,
277 F.3d 261, 294 (3d Cir.
2001) (recognizing that a new trial may be appropriate in lieu of a
reconstruction hearing depending on “the passage of time” (citation omitted)).
The merits of Johnson’s Batson claim do not weigh on this narrow issue. Our
previous opinion establishes as law of the case (1) that Johnson satisfied
Batson’s first step by making a prima facie case of racially motivated
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peremptory strikes and (2) that the district court erred when it failed to
formally conduct Batson’s second step. Johnson, 3 F.4th at 1226–27; see
United States v. Trent, 884 F.3d 985, 994 (10th Cir. 2018) (“Under the law of
the case doctrine, when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case.”
(cleaned up)). Those issues being resolved, we pick this case up where we left
off: the possibility of holding a Batson reconstruction hearing on this case
record. Johnson,
3 F.4th at 1227. Having studied the record, we conclude that
the court abused its discretion in deciding that a reconstruction hearing would
be “impossible and unsatisfactory.” Johnson,
2023 WL 5055491, at *1. The
discovery conducted at the district court’s behest yielded sufficient information
for the court to hold a Batson reconstruction hearing at step two.
To start, the state acquired data about the racial and ethnic identities of
all venirepersons, which the district court sought specifically in its discovery
order. The state gathered the driver’s licenses of all 33 venirepersons and
telephoned most of them (some were unreachable) to ask about their self-
identified race, ethnicity, and English-language proficiency. This investigation
revealed that, of the 33 venirepersons, three were Black, one was Native
American, and the remainder were white, according to their driver’s licenses.
Of those listed as “White” on their driver’s licenses, a few identified with other
racial or ethnic identities. App. vol. VIII, at 2101–06. For the six stricken
jurors, the state obtained the following information:
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1. Tawil: Driver’s license reports his race as “White,” he self-identifies as white, and he speaks English fluently as his
second language, id. at 2135;
2. Dickens: Driver’s license reports his race as “Black or African
American,” he self-identifies as “African American,” and he
speaks English as his first language, id. at 2102, 2114;
3. de Wassom: Driver’s license reports her race as “White,” she
self-identifies as “Mexican,” and she speaks English as her
second language, id. at 2105, 2136;
4. Wilson: Driver’s license reports her race as “White,” she self-identifies as white, and she speaks English as her first
language, id. at 2138;
5. Carranza: Driver’s license reports her race as “White,” she
could not be reached by phone to self-report her racial or
ethnic identity, and she stated during voir dire that she speaks
English as her second language, id. at 2112;
6. Martinez: Driver’s license reports her race as “White,” she
self-identifies as white, and she speaks English as her first
language, id. at 2122.
As to the remaining venirepersons, the demographic information
produced by the state shows that one of the Black prospective jurors (Williams)
was empaneled after the trial court rejected the state’s peremptory strike, 5 one
of the Black prospective jurors (Sweet) served as an alternate, the sole Native
5
When Harris moved to strike prospective juror Williams, Harris stated
preemptively: “I understand she’s African American, but our race neutral
reason for her is she’s a pastor.” App. vol. I, at 231. The trial judge rejected
this strike, which he thought “would have effectively eliminated all African
Americans” from the jury. Id. The trial judge later acknowledged at sentencing
that this rationale for keeping Williams on the jury had been an error to the
detriment of the state. On direct appeal, the OCCA determined that the trial
judge’s error did not warrant reversal because the Williams strike had
nevertheless been supported by a race-neutral reason. This determination by the
OCCA factored into our previous decision that the OCCA had “plainly
misapprehended or misstated the record” when it said the trial court had
accepted the state’s proffered race-neutral reasons for its strikes. Johnson,
3 F.4th at 1224 (cleaned up).
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American prospective juror (Nichols) was stricken on the state’s eighth
peremptory challenge with no protest from Johnson, and one of the prospective
jurors (Perez) who self-identifies as “Hispanic” was empaneled with no
challenge from the state. App. vol. VIII, at 2104. The discovery confirms that
the rest of the empaneled jury was racially white, both according to their
driver’s licenses and self-identification. This thorough reporting should have
allayed the district court’s concerns about “lack[ing] the circumstantial
information necessary to contextualize the prosecutor’s stated reasons for the
challenged strikes.” App. vol. VII, at 2047. The court asked for context, and it
appears that the state delivered.
Next, we consider Harris and Drummond’s contemporaneous,
handwritten notes from voir dire. Even though the trial judge never prompted
the prosecution for race-neutral reasons, a record was nevertheless created
through the prosecutors’ notes. See Paulino v. Harrison, 542 F.3d 692, 700 (9th
Cir. 2008) (“Evidence of a prosecutor’s actual reasons may be direct or
circumstantial.”). Bringing these notes to life, Harris and Drummond’s
deposition testimonies explained the significance of certain notations, such as
marking a prospective juror’s name with a “?” (to indicate concern and a
possible desire to strike) or designating a juror’s name with the letter “J” (to
signal prior jury service). App. vol. VIII, at 2197, 2213. Unlike other cases
where courts (rightly) refuse to speculate about a prosecutor’s actual reasons
for striking a prospective juror, the district court had access to handwritten
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notes seldom available ten-plus years after trial. See Paulino, 542 F.3d at 700
(concluding that the state’s mere speculation about its race-neutral reasons
without any recollection or record from the prosecutor failed Batson’s second
step); Holloway v. Horn,
355 F.3d 707, 725 (3d Cir. 2004) (determining that
the state’s “speculation,” based on the voir dire transcript, about the
prosecutor’s actual reasons for striking a juror was inadequate).
Finally, the state obtained depositions from all the major players in
Johnson’s trial: now-retired Judge Gillert (then state trial judge), now-Judge
Drummond (then assistant prosecutor), Lyons (defense attorney), and Harris
(lead prosecutor). Not only were all available to testify, a rarity in itself, but all
deponents recalled the case in great detail. The trial’s prominence in the Tulsa
community and notable publicity made Johnson’s trial a standout in some of the
deponents’ memories. For example, in his deposition Harris testified that the
trial was memorable because the case was high-profile, he had effectively tried
the case three separate times against different codefendants, and he had faced
threats to his life during the trial—all facts that would be relevant to an
assessment of Harris’s credibility and his purported motivations for striking
jurors at a Batson hearing. Specifically as to the peremptory strikes, Harris
testified thoroughly about his race-neutral reasons for striking each of the six
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challenged jurors. 6 Harris described the jurors’ demeanors, facial expressions,
and other factors (i.e., profession, education level, English-language
proficiency) that contributed to his decision in exercising the strikes.
Despite Harris’s vivid recollections, the court identified several specific
“circumstances” as being ill-suited to reconstruction. Johnson, 2023 WL
5055491, at *7. These included Harris’s “perception[s]” about the dynamic
between certain jurors, “visual observation[s],” remarks about jurors’ “facial
expression[s],” “attitude[s],” and “tone,” along with other “[d]emeanor-based
explanations.”
Id. In the court’s mind, even if Harris testified to his subjective
impressions at a reconstruction hearing, its ability to assess Harris’s credibility
ten years after the fact would be no match for the trial court’s firsthand
observations.
Id. Because ten years had passed since Johnson’s trial, the court
concluded that Johnson could not be “reasonably expect[ed] . . . to ‘show any
weaknesses’ in Harris’s demeanor-based justifications” at a Batson
reconstruction hearing, just like the court could not be reasonably expected to
“meaningfully assess” whether Harris’s stated justifications were “merely
pretext for purposeful discrimination.”
Id.
This discussion suggests that the district court misdirected the
“impossible or unsatisfactory” inquiry to the wrong step of Batson. The court’s
6
Johnson claimed that the six strikes established a pattern, though a
pattern is not required to satisfy Batson’s first step, only an inference of
discriminatory intent must be shown. Cortez-Lazcano v. Whitten, 81 F.4th
1074, 1088 (10th Cir. 2023).
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concerns all pertained to its ability to make a ruling at step three, not the
possibility of holding a hearing at step two. 7 Cf. Purkett v. Elem, 514 U.S. 765,
768 (1995) (determining that the circuit court “erred by combining Batson’s
second and third steps into one” because the plausibility of the state’s race-
neutral explanations do not “become[] relevant” “until the third step”). The
district court even recognized that a reconstruction hearing at step two was
“[a]rguably” possible based on the discovery. Johnson,
2023 WL 5055491,
at *6. By focusing on the feasibility of making credibility determinations, the
district court put the step-three cart before the step-two horse.
Similarly, Johnson argues that several circumstances of the trial “cannot
be reconstructed,” such as Harris’s “personal perceptions” about jurors’ facial
expressions, attitude, and tone, as well as the racially charged atmosphere in
7
Before the district court, Johnson argued that the state had waived its
right to a Batson reconstruction hearing and that no Supreme Court decision
had recognized reconstruction hearings as “a legitimate legal mode of analysis
to salvage a Batson claim.” App. vol. VIII, at 2265. Johnson raised these same
arguments to this court in his petition for rehearing and before the Supreme
Court in his petition for certiorari. He makes these points again in this appeal.
Our previous decision remanding the case with instruction for the district court
to hold a Batson reconstruction hearing demonstrates our disagreement with
Johnson on the legitimacy of that procedure. See Johnson, 3 F.4th at 1227. That
and the previous dispositions in this case resolve Johnson’s waiver arguments.
See Est. of Cummings by & through Montoya v. Cmty. Health Sys., Inc.,
881
F.3d 793, 801 (10th Cir. 2018) (“A lower court is bound to carry the mandate of
the upper court into execution and cannot consider the questions which the
mandate laid to rest.” (cleaned up)); cf. Clark v. State Farm Mut. Auto. Ins.
Co.,
590 F.3d 1134, 1140 (10th Cir. 2009) (noting that “[w]e depart from the
[law of the case] doctrine only in . . . exceptionally narrow circumstances”
(citation omitted)).
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the courtroom which, according to Lyons in his deposition, made the
discriminatory nature of the strikes “obvious.” Resp. Br. at 26, 28. We are
equally unconvinced by these arguments. Both Harris and Lyons would be
available to testify at a reconstruction hearing about these subtleties. From that
testimony, the district court could weigh the credibility of Harris’s testimony
about the jurors’ demeanors against Lyons’s testimony about the trial
atmosphere.
The district court’s (and Johnson’s) concerns about reconstruction are
misplaced. “[W]here a prosecutor can generally recall the trial, review
contemporaneous transcripts or notes, and articulate race-neutral explanations
for the challenged strikes, the issue of intent is . . . well within the province of
the [district] court.” Harris v. Haeberlin, 752 F.3d 1054, 1059 (6th Cir. 2014).
With all of those ingredients present in the record, the court was well-equipped
to weigh the evidence and make a call. In fact, the inordinate amount of record
evidence available in this case, plus the availability of the original trial judge,
prosecutor, and defense attorney, leaves us hard-pressed to imagine a case
better suited to a reconstruction hearing. If a reconstruction hearing is not
possible in this case, then it’s hard to conceive of one where it would be. By
finding a Batson hearing “impossible” on this case record, the district court’s
decision threatens to create a per se rule that reconstruction hearings are never
possible years after trial. We decline to impose such a strict rule. Given the
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ample evidence in the record, the district court applied the “impossible or
unsatisfactory” standard too harshly.
All told, if a Batson hearing can be reconstructed at step two, then it
must be, and only then does the court concern itself with step three. See
Purkett, 514 U.S. at 768 (“[T]o say that a trial judge may choose to disbelieve a
silly or superstitious reason at step three is quite different from saying that a
trial judge must terminate the inquiry at step two when the race-neutral reason
is silly or superstitious.”).
Once the court reaches the final step of the Batson gauntlet, it’s nearly
home free. The district court is “best situated to evaluate . . . the credibility of
the prosecutor who exercised [the peremptory] strikes.” Davis v. Ayala, 576
U.S. 257, 273–74 (2015). These credibility determinations are nearly ironclad
on appeal absent “exceptional circumstances.” See
id. at 274 (quoting Snyder,
552 U.S. at 477). Though a Batson reconstruction hearing conducted ten-plus
years after trial presents its challenges, that does not make the procedural
function of holding the hearing impossible when the record contains adequate
evidence of the prosecutor’s race-neutral explanations for issuing the
peremptory strikes. See Miller-El v. Dretke,
545 U.S. 231, 231 (2005)
(recognizing that the only order of business at Batson step two is for “the State
to come forward with a neutral explanation”); Cortez-Lazcano v. Whitten,
81
F.4th 1074, 1083 (10th Cir. 2023) (“At [Batson’s] second step, nearly any race-
neutral explanation will suffice, even if it is not ‘persuasive, or even
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plausible.’” (quoting Purkett, 514 U.S. at 767–68)). As was the case here.
Compare Barnes v. Anderson, 202 F.3d 150, 157 (2d Cir. 1999) (ordering a new
trial instead of remanding for a Batson reconstruction hearing when the trial
judge had passed away), with Bryant v. Speckard,
131 F.3d 1076, 1078 (2d Cir.
1997) (ruling that the state trial court had adequately reconstructed a Batson
challenge by hearing testimony from the prosecutor about his “subjective”
reasons for striking jurors and accessing “the trial court clerk’s voir dire
minutes”). The district court was armed with racial data about each
venireperson, the prosecutors’ contemporaneous notes from voir dire, and
depositions from the trial counsel and judge, which made a Batson
reconstruction hearing possible at step two. What the district court does at step
three with the state’s race-neutral reasons once they’re presented, we leave to
the court’s discretion.
CONCLUSION
We reverse and remand for further proceedings in accordance with this
opinion.
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