In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2884

Rhodda Thompson,

Plaintiff-Appellant,

v.
Altheimer & Gray,

Defendant-Appellee.



Appeal from the United States District Court
for the
Northern District of Illinois, Eastern
Division.
No. 96 C 4319--Morton Denlow, Magistrate Judge.


Argued February 21, 2001--Decided April 19,
2001




  Before Posner, Kanne, and Diane P. Wood,
Circuit Judges.

  Posner, Circuit Judge. The plaintiff
brought suit against her employer under
Title VII of the Civil Rights Act of
1964, charging racial discrimination. The
case was tried, the jury returned a
verdict for the defendant, and the
plaintiff appeals, arguing that a juror
named Leiter should have been struck for
cause. If the plaintiff is right, she is
entitled to a new trial without having to
show that Leiter’s presence on the jury
caused the jury to side with the
defendant. Denial of the right to an
unbiased tribunal is one of those trial
errors that is not excused by being shown
to have been harmless. Gray v.
Mississippi, 481 U.S. 648, 668 (1987);
Grancorvitz v. Franklin, 890 F.2d 34, 41
(7th Cir. 1989); Fietzer v. Ford Motor
Co., 622 F.2d 281, 286 (7th Cir. 1980);
Dyer v. Calderon, 151 F.3d 970, 973 and
n. 2 (9th Cir. 1998) (en banc).

  But what of the plaintiff’s failure to
use any of her three peremptory
challenges to strike Leiter? She says
that she used up her peremptory
challenges on jurors whom she considered
even less likely to favor her cause than
Leiter was. This acknowledgment might
seem to imply--since the plaintiff is not
contending that any of those jurors had
to be stricken for cause--that she can’t
really think that Leiter was biased; for
if Leiter was biased and those other
three were not, surely the plaintiff
would have used a peremptory challenge to
get rid of Leiter first. That doesn’t
follow. Bias is only one factor in
deciding whether to challenge a juror. A
lawyer might be utterly convinced that a
member of the jury venire would vote
against his client no matter what the
evidence showed, and yet his belief might
be based on a hunch that he could not
articulate as a ground for a challenge
for cause. He might be more eager to
strike that juror than one who had an
evident bias (though the judge hadn’t
been convinced of this), for he might
think he could overcome the hurdle posed
by that bias more readily than he could
persuade the stubborn but not
demonstrably biased juror.

  A plaintiff may have a duty to use a
peremptory challenge to remove a juror
whom the judge correctly or incorrectly
has failed to remove for cause, in which
event a plaintiff who fails to use a
peremptory challenge for this purpose
will have forfeited the right to appeal
the denial of the challenge for cause. In
Ross v. Oklahoma, 487 U.S. 81 (1988), the
Supreme Court in a capital-punishment
case upheld against constitutional
challenge a state rule imposing just such
a duty. On the basis of Ross we then held
that the loss of a peremptory challenge
because the challenge was used to "cure"
the judge’s error in failing to remove a
juror challenged for cause did not impair
the right to an impartial tribunal.
United States v. Nururdin, 8 F.3d 1187,
1191 (7th Cir. 1993). That became the law
of the nation in United States v.
Martinez-Salazar, 528 U.S. 304 (2000);
see also United States v. Polichemi, 219
F.3d 698, 705-06 (7th Cir. 2000); Walzer
v. St. Joseph State Hospital, 231 F.3d
1108, 1111 (8th Cir. 2000). All but Ross
are different cases from the present one,
however. In those cases the peremptory
challenge had been exercised and the
biased juror removed. As a result, the
jury that decided the defendant’s guilt
was impartial. But could a defendant
preserve the issue of bias simply by
failing to use his peremptory challenge
to remove the biased juror? Since the use
of a peremptory challenge to remove that
juror would cure the judge’s error, the
defendant’s failure to use a peremptory
challenge to do this might well be
thought to make the error a self-
inflicted wound, as argued in a
concurring opinion in Martinez-Salazar.
528 U.S. at 318-19. The majority opinion,
however, suggests a different view--that
the litigant can let the biased juror be
seated and seek to reverse the adverse
judgment (if one results) on appeal on
grounds of bias. See id. at 314-17. The
suggestion is dictum, and can be
questioned as putting the litigant in a
heads-I-win-tails-you-lose position: if
he wins a jury verdict, he can pocket his
victory, and if he loses, he can get a
new trial.

  But this is not the case in which to
consider whether to take on the Supreme
Court’s dictum, since the defendant is
not arguing that the plaintiff’s failure
to use a peremptory challenge against
Leiter prevents the plaintiff from
challenging Leiter’s presence on the
jury. It argues the distinct point that
the plaintiff cannot complain about a
violation of her statutory right to three
peremptory challenges. 28 U.S.C. sec.
1870; see also Fed. R. Civ. P. 47(b). The
defendant is of course right. Martinez-
Salazar states that securing an impartial
jury is one of the intended uses of
peremptory challenges, 528 U.S. at 316;
see also Walzer v. St. Joseph State
Hospital, supra, 231 F.3d at 1111; United
States v. Quinn, 230 F.3d 862, 865 (6th
Cir. 2000), and hence may be a reason why
the statutory allotment is three rather
than one or two or none. (Martinez-
Salazar was a criminal case, but we
cannot think of any difference which that
would make.) But the statutory question
is a side issue. The important question
is whether the plaintiff’s constitutional
right to an impartial tribunal was
infringed. Let us see.

  During the voir dire of the jury, the
judge asked the members of the venire
whether "there is something about this
kind of lawsuit for money damages that
would start any of you leaning for or
against a particular party?" Leiter
raised her hand and explained that she
has "been an owner of a couple of
businesses and am currently an owner of a
business, and I feel that as an employer
and owner of a business that will
definitely sway my judgment in this
case." The judge asked her whether "if I
instructed you as to what the law is that
you would be able to apply the law
recognizing that you are a business
owner?" To which she replied, "I think my
experience will cloud my judgment, but I
can do my best." The judge permitted the
lawyers also to ask questions of the
prospective jurors and Thompson’s lawyer
asked Leiter, "And you said earlier that
you were concerned that your position as
a business owner may cloud your judgment.
Can you tell me how?" And she replied, "I
am constantly faced with people that want
various benefits or different positions
in the company [what Thompson was seeking
from her employer, the defendant,
Altheimer & Gray] or better contacts or,
you know, a myriad of issues that
employers face on a regular basis, and I
have to decide whether or not that person
should get them." The lawyer then asked
Leiter whether she was concerned "that if
somebody doesn’t get them [benefits
sought from their employer] they’re going
to sue you," and she answered, "Of
course." Asked then whether "you believe
that people file lawsuits just because
they don’t get something they want?", she
answered, "I believe there are some
people that do." In answer to the next
and last question, "Are you concerned
that that might cloud your judgment in
this case?" she said, "I think I bring a
lot of background to this case, and I
can’t say that it’s not going to cloud my
judgment. I can try to be as fair as I
can, as I do every day."

  That was the end of the voir dire of
Leiter. After refusing to strike her for
cause (though urged to do so by the
plaintiff’s lawyer), and releasing the
jurors who had not been selected for the
jury (the defendant had also exercised
its three peremptory challenges, none
overlapping with the plaintiff’s), the
judge asked the eight remaining jurors,
that is, the jurors selected to hear the
case, whether they would follow his
instructions on the law even if they
didn’t agree with them and whether they
would be able to suspend judgment until
they had heard all the evidence. The
question was asked to the jurors at large
and all either nodded their heads or said
yes. The defendant, again perhaps
dropping the ball, makes nothing of
Leiter’s failure at this stage to
reiterate her doubts about her ability to
exercise an unclouded judgment. The
defendant is content to argue that the
answers that Leiter gave to the earlier
questions by the judge, and the questions
by Thompson’s lawyer, did not require
that Leiter be struck for cause.

  Our review of the trial judge’s ruling
with respect to a challenge for cause is
deferential, Salvato v. Illinois Dept. of
Human Rights, 155 F.3d 922, 927 (7th Cir.
1998); Pitsonbarger v. Gramley, 141 F.3d
728, 734-35 (7th Cir. 1998); United
States v. Vega, 72 F.3d 507, 512 (7th
Cir. 1995); United States v. Blom, 242
F.3d 799, 805 (8th Cir. 2001); United
States v. Beasley, 48 F.3d 262, 266 (7th
Cir. 1995); Wolfe v. Brigano, 232 F.3d
499, 502 (6th Cir. 2000), but not
completely supine, and it is pertinent to
note that no issue of credibility is pre
sented. There is no argument that Leiter
was not telling the truth. The issue is
interpretive: did what she say manifest a
degree of bias such that the judge abused
his discretion in failing to strike her
for cause?

  In defense of his ruling, the defendant
has come up with only one case, United
States v. Ricketts, 146 F.3d 492, 496
(7th Cir. 1998), where we upheld the
trial judge’s refusal to strike for cause
jurors who, in a trial for complicity in
a prison riot, said on voir dire that
they would tend to believe prison guards
over inmates. The defendant says in its
brief that we did this even though the
jurors in question "never testified to
their willingness or capacity to put this
tendency aside for the purposes of
trial." That is an inaccurate description
of our decision, and leaves the defendant
startlingly bereft of apposite case law.
The trial judge in Ricketts had faulted
defense counsel for failing to follow up
the question about the juror’s tendency
to believe guards over inmates, and as a
result of that failure the jurors had
never had a chance to affirm their
willingness or capacity to judge
impartially. The tendency was not itself
a sign of bias. There is a critical
difference between a "prior [belief]" in
the Bayesian statistician’s sense and
"bias" in the sense that requires
disqualification of a juror or judge.
Everyone brings to a case a set of
beliefs that may incline him in one
direction or another. A person told that
X had been indicted, and asked whether he
thought X guilty, might reply that he
thought X probably was guilty because few
innocent people are indicted. That would
be a prior. It would be a bias only if it
were irrational or unshakable, so that
the prospective juror "would be unable to
faithfully and impartially apply the
law," Wainwright v. Witt, 469 U.S. 412,
424 (1985) (emphasis added), would be, in
other words, "adamant," Fleenor v.
Anderson, 171 F.3d 1096, 1099 (7th Cir.
1999)--in our hypothetical if, for
example, the person added, "Nothing will
ever convince me that the government
would indict an innocent person." Cf.
Ross v. Oklahoma, supra, 487 U.S. at 83-
84.
  When Leiter said that she believed that
some people sue their employer just
because they haven’t gotten a promotion
or a raise or some other benefit, she was
not manifesting bias. She was expressing
a prior belief (prior, that is, to
hearing any evidence in this case) that
was not only not irrational, but was
undoubtedly true--there are indeed some
people who will sue their employer just
because of disappointment over the
failure of the employer to give them
something they want. In other words,
there are spurious suits, in the
employment domain as elsewhere. Leiter
could not be thought biased for holding a
true belief, or even for holding it
unshakably if it is indubitably true. The
belief that some employees make bogus
claims against employers is so obviously
true that it could not be shaken; but
inability to set aside a clearly sound
belief does not make for a biased juror.
It makes for a realistic one.

  Suppose a member of the venire in a case
involving alleged sex discrimination by a
police department stated his belief that
men on average have greater upper-body
strength than women. Suppose he added
that this belief was unshakable in the
sense that if some social scientist
testified otherwise, he would conclude
that he was being fed junk science.
Should this juror be disqualified? Not
automatically, surely. The relevant
questions would be whether he could
distinguish averages from individuals,
and thus recognize the possibility that a
given woman might have greater upper-body
strength than a given man, and whether he
was so fixated on the average sex
difference in upper-body strength that he
was not open to the possibility that a
woman whose upper-body strength was
indeed less than that of the least strong
firefighter in the fire department could
nevertheless be as good a firefighter, or
even a better one.

  The question in this case was not
whether Leiter’s belief that some claims
against employers are spurious was true
or false (it was, as we have noted,
true), but whether this belief would
somehow impede her in giving due weight
to the evidence and following the judge’s
instructions. That question was not
adequately explored. The last thing
Leiter said before the judge refused to
strike her for cause was that she
couldn’t say the "background" she brought
to this case wasn’t going to "cloud" her
judgment. She said she would try to be
fair, but she expressed no confidence in
being able to succeed in the attempt. She
may have realized that because of bad
experiences in the past, she might have
difficulty separating the logically
distinct propositions that some claims
against employers are bogus and that this
claim must be bogus because it is a claim
against an employer.

  Had she said she could not be fair, the
judge would of course have had to strike
her for cause. She did not say that, and
so the judge (the defendant, though
citing Ricketts, does not argue that the
plaintiff’s lawyer was at fault in
failing to follow up his question whether
Leiter’s background would cloud her
judgment) should have followed up by
asking her, as he later asked the jury en
masse, whether she would follow his
instructions on the law and suspend
judgment until she had heard all the
evidence.

  Instead the matter was left dangling,
just as it had been in Martinez-Salazar.
That juror whom the defendant in that
case used a peremptory challenge to
excuse after the judge refused to excuse
him for cause, when asked "whether, if he
were a defendant facing jurors with
backgrounds and opinions similar to his
own, he thought he would get a fair
trial," answered: "I think that’s a
difficult question. I don’t think I know
the answer to that." 528 U.S. at 308
(emphasis added). And when asked whether
he "would feel more comfortable erring on
the side of the prosecution or the
defense," he said he "would probably be
more favorable to the prosecution." Id.
(emphasis added). When the judge then
scolded him for reversing the presumption
of innocence, the juror said, "I
understand that in theory." Id. (emphasis
added). The judge nevertheless refused to
excuse the juror for cause because "he
said . . . he could follow the
instructions, and he said . . . ’I don’t
think I know what I would do,’ et
cetera." Id. at 309. The Supreme Court
held that in these circumstances the
judge had erred in not allowing the
challenge for cause. It is just like our
case. The judge didn’t push hard enough
to determine whether Leiter could
relinquish her prior beliefs for purposes
of deciding the case.

  Had the judge pushed Leiter and had she
finally given unequivocal assurances that
he deemed credible, his ruling could not
be disturbed. See Lockett v. Ohio, 438
U.S. 586, 595-96 (1978); Salvato v.
Illinois Dept. of Human Rights, supra,
155 F.3d at 926-27; Pitsonbarger v.
Gramley, supra, 141 F.3d at 735; Art
Press, Ltd. v. Western Printing Machinery
Co., 791 F.2d 616, 619 (7th Cir. 1986);
United States v. Blom, supra, 242 F.3d at
805. But he failed to do that. The venire
contained 20 prospective jurors, and more
than enough were left to make up a full
jury of 8 when he refused to excuse her.
A candid and thoughtful person, if one
may judge from the transcript, Leiter
would probably have made an excellent
juror--in another case.

  When a prospective juror manifests a
prior belief that is both material and
contestable (for, to repeat an earlier
point, it is not bias to cling to a
belief that no rational person would
question), it is the judge’s duty to
determine whether the juror is capable of
suspending that belief for the duration
of the trial. When as in this case the
record contains no assurances that the
belief is "shakable," that the
prospective juror can exercise a judgment
unclouded by that belief, the verdict
cannot stand. See Art Press, Ltd. v.
Western Printing Machinery Co., supra,
791 F.2d at 619; Wolfe v. Brigano, supra,
232 F.3d at 502-03; United States v.
Gonzalez, 214 F.3d 1109, 1113-14 (9th
Cir. 2000); United States v. Padilla-
Mendoza, 157 F.3d 730, 733-34 (9th Cir.
1998); United States v. Salamone, 800
F.2d 1216, 1226-27 (3d Cir. 1986). "When
a juror is unable to state that she will
serve fairly and impartially despite
being asked repeatedly for such
assurances, we can have no confidence
that the juror will ’lay aside’ her
biases or her prejudicial personal
experiences and render a fair and
impartial verdict." United States v.
Gonzalez, supra, 214 F.3d at 1114. That’s
this case. Missing are those "unwavering
affirmations of impartiality" that
permitted the district judge in United
States v. Garcia, supra, 936 F.3d at 653,
to find the challenged juror unbiased.

Reversed and Remanded.




  DIANE P. WOOD, Circuit Judge, concurring.
I agree wholeheartedly with the
majority’s conclusion that the plaintiff,
Rhodda Thompson, is entitled to a new
trial on her Title VII claims because the
district court permitted Juror Leiter to
sit without obtaining the kind of
unequivocal assurances of impartiality
that are required to assure an unbiased
trier of fact. Along the way toward
reaching that conclusion, however, the
majority expresses skepticism about the
wisdom of the principle the Supreme Court
articulated in United States v. Martinez-
Salazar, 528 U.S. 304 (2000), to the
effect that there is no rule compelling a
defendant to use or to refrain from using
a peremptory challenge on a particular
basis, or when a particular set of facts
is present. Id. at 314. Instead, the
Court held, after the party has failed in
an effort to convince the trial court to
strike a juror for cause, that party has
"the option of letting [the prospective
juror] sit on the petit jury and, upon
conviction, pursuing a Sixth Amendment
challenge on appeal." Id. at 315.
Martinez-Salazar ultimately held that
once a defendant has elected to use a
peremptory challenge curatively, the only
question that survives is whether the
jury that actually sat was an unbiased
one.

  I do not share the majority’s
reservations about this rule, and I
therefore support strongly the majority’s
decision to reserve any exploration of
this rule for another day (assuming for
the sake of argument that the Supreme
Court has left us any room in which to
operate). In my opinion, there is much to
commend in the system the Supreme Court
sketched out. It is important to remember
that no problem arises until the party
has challenged a prospective juror for
cause and the court has rejected the
challenge. The district court thus cannot
be sand-bagged into permitting a biased
juror to sit. Once the court has ruled on
all the challenges for cause, the lawyers
representing both sides are left with an
array of prospective jurors. At that
point, each lawyer must decide how best
to use the allotted peremptory
challenges. I see no way of second-
guessing that choice at the appellate
level. As the majority acknowledges,
certain prospective jurors might not
reveal enough information on the record
to support a challenge for cause, and yet
the lawyer might feel positive that these
individuals would in fact be biased. Even
with respect to the prospective jurors
who were challenged unsuccessfully for
cause, the chances that any of those
decisions by the trial court amounted to
reversible error are just that--chances--
and the responsible lawyer cannot count
on convincing an appellate court later
that the ruling was in error. In the end,
therefore, there would be no objective
way to second-guess the lawyer’s
decisions about the way her peremptory
challenges were used. The Supreme Court’s
Martinez-Salazar holding quite properly
reflects this fact.

  The one issue that I regard as more
complex concerns a plaintiff who does not
exhaust her peremptory challenges. That
is not Thompson’s situation, but it
occasionally happens that not all
peremptories are used. If there are-left-
over peremptories and the plaintiff has
failed to convince the court to strike a
certain juror for cause, it is at least
imaginable that a decision not to use an
available peremptory challenge on that
juror might amount to a waiver of the
right to assert that the juror should not
have sat. As I said, that is not this
case. It is possible that there might be
further complications in an actual case
that I cannot envision at this time that
would justify even this kind of strategic
decision.

  With this qualification, I concur in the
court’s opinion.
