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Wednesday, March 09, 2011

Ind. Decisions - Two Indiana opinions today from 7th Circuit

In Peggy Abner and Linda Kendall v. Scott Memorial Hospital (SD Ind., CJ Young), a 6-page opinion, Judge Posner writes:

On February 15, 2011, we issued an order to show cause why the appellants should not be sanctioned for filing an oversized brief without our permission. The appellants have responded and the sanctions proceeding is ripe for decision—as indeed is the appeal itself, which has been fully briefed. * * *

The appellants’ brief states: “The undersigned [the appellants’ lawyer, John L. Caudill] hereby certifies that this brief complies with the type-volume limitation requirements of FRAP [Federal Rule of Appellate Procedure] 32(a)(7)(B), as this brief contains 13,877 words according to a word count by the word-processing system used to produce this brief, exclusive of sections of this brief exempted by FRAP 32(a)(7)(B)(iii).” But in note 1 on page 1 of the appellee’s brief we read that the appellants’ brief exceeds the 14,000-word limit—that it contains 18,000 words excluding the portions of the brief that Rule 32(a)(7)(B)(iii) exempts from the word limit. No authorization by this court had been sought or given by either party to file an oversized brief. The appellee’s brief was within the word limit. * * *

The response to the order to show cause, signed by lawyer Caudill, concedes that the brief exceeds the word limit (it exceeds it by more than 4,000 words), and states by way of explanation that he had “inadvertently considered only the words included in the argument section of the brief as part of the Rule 32(a)(7)(B)(iii) requirement (the word count also did not factor in citations made within parentheticals).” It is difficult to see how these errors could be “inadvertent.” * * *

Had appellants filed an 18,000-word brief with a truthful certificate, the brief would have been rejected; there would have been no occasion for sanctions, just as there is no occasion for sanctions when a brief is rejected for omitting a statement of the standard of review or the date on which the judgment was entered, which is essential to determining the timeliness of the appeal. We reject many briefs for these and similar reasons. The problem here, by contrast, is a misrepresentation that was initially successful in averting rejection of the brief. The misrepresentation would have gone unnoticed had the appellee not called it to our attention. * * *

Lawyer Caudill’s response to our order to show cause continues with the false claim that the appellants’ violation of the Federal Rules of Appellate Procedure “came to the Court’s attention via an ex parte contact made by counsel for Appellee directly to the Court of Appeals Clerk—and not (if it were actually a significant matter) in the form of a Motion filed by Appellee. * * *

The flagrancy of the violation in this case might well justify the dismissal of the appeal: let this be a warning. But in addition it is plain from the briefs that the appeal has no merit. To allow time for the appellants to file a compliant brief and the appellees to file a revised brief in response, and to reschedule oral argument, would merely delay the inevitable.

The motion to file an oversized brief is denied and the judgment of the district court summarily AFFIRMED.

In U.S. v. Styles Taylor and Keon Thomas (ND Ind.,Charles R. Norgle, Sr., Judge), a 10-page opinion, Judge Stykes writes:
This case returns to us again on the issue of the prosecutor’s use of a peremptory strike against an African-American member of the jury pool. Styles Taylor and Keon Thomas, both African-American, were convicted of robbing and murdering the owner of a gun store in Hammond, Indiana. See 18 U.S.C. §§ 924(c) & (j), 1951. The victim was white. During jury selection, the defendants challenged the government’s use of peremptory strikes against several African-American jurors. See Batson v. Kentucky, 476 U.S. 79 (1986). The district court denied the Batson challenges, accepting the government’s proferred nonracial reason for the strikes. Twice we have remanded the case to the district court for further explanation of whether the prosecutor’s stated reason was credible with respect to one juror in particular. See United States v. Taylor, 509 F.3d 839, 841 (7th Cir. 2007) (“Taylor I”); United States v. Taylor, 277 F. App’x 610, 612-13 (7th Cir. 2008) (“Taylor II”).

After our second remand, the district court held an evidentiary hearing and issued a lengthy decision again crediting the prosecutor’s explanation for the strike, which had expanded to include multiple new nonracial justifications. The defendants contend in this latest appeal that the scope of the inquiry on remand should have been limited to explaining the original reason offered during voir dire, not adding new ones. We agree. The Supreme Court held in Miller-El v. Dretke, 545 U.S. 231, 252 (2005) (“Miller-El II”), that the validity of a strike challenged under Batson must “stand or fall” on the plausibility of the explanation given for it at the time, not new post hoc justifications. Because it is not possible to separate the permissible from the impermissible support for the court’s Batson determination, we must vacate and remand for retrial. * * *

In this case, when the Batson challenge was made, the only reason offered by the prosecutor to justify striking Watson was her response to the non-shooter question. As such, on remand the court should have limited its inquiry and analysis to exploring that very question. But the remand hearing went much further. The government compared Watson to jurors Nowak, Evans, and Wills against the backdrop of seven new reasons unrelated to the jurors’ willingness to impose the death penalty on a non-shooter. And the district court factored several of these new reasons into its analysis. For instance, the court accepted the government’s explanation for striking Watson while keeping Nowak and Evans in the pool by closely examining the written responses of all three jurors to death-penalty questions on their juror questionnaires. But at the time the Batson challenge was made, the prosecutor did not say a word about striking Watson because of her answers on her juror questionnaire. Similarly, in crediting the government’s explanation for striking Watson but not Wills, the court looked beyond their responses to the non-shooter question and analyzed their attitudes toward gun control and how they might evaluate the defendants’ backgrounds when deciding whether to recommend the death penalty. But when the Batson challenge was made, the prosecutor never tried to justify striking Watson based on her views of either of these issues.

Accepting new, unrelated reasons extending well beyond the prosecutor’s original justification for striking Watson amounts to clear error under the teaching of Miller-El II, and the government’s reliance on these additional reasons raises the specter of pretext. Our decision in Hendrix is not to the contrary; in that case, the “add on” race-neutral reasons were offered at the time of the initial Batson challenge, not after the fact. Hendrix, 509 F.3d at 367. That’s obviously not the case here. It’s not possible to parse the district court’s decision, separating the permissible from the impermissible reasons supporting the court’s credibility finding. Accordingly, we must vacate the judgments and remand for a new trial.

Posted by Marcia Oddi on March 9, 2011 12:47 PM
Posted to Ind. (7th Cir.) Decisions