In the

United States Court of Appeals

For the Seventh Circuit

No. 13-2771

KENNETH MARSHALL,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 1:12-cv-02591 — Thomas M. Durkin, Judge.

ARGUED JUNE 5, 2014 — DECIDED AUGUST 11, 2014

Before WOOD, Chief Judge, and EASTERBROOK and KANNE,

Circuit Judges.

KANNE, Circuit Judge. On April 8, 2010, Chicago police

officers executing a search warrant on a south side residence

discovered a shotgun in one of the bedrooms. Earlier, plaintiff

Kenneth Marshall, who was present in the residence, had

suggested that the bedroom was his. Marshall is a convicted

felon. Accordingly, the officers placed him under arrest and
2 No. 13-2771

took him into custody on the theory that he constructively

possessed a firearm while it was unlawful for him to do so. In

this 42 U.S.C. § 1983 action, Marshall sued the City of Chicago

and the law enforcement officers involved in his arrest for

damages on the theory that the arrest was not supported by

probable cause.

The matter proceeded to trial, and a jury returned a verdict

in favor of the defendants. Marshall appeals, challenging two

aspects of the jury selection process. First, Marshall argues that

the district court abused its discretion by denying his motion

to excuse a prospective juror for cause on the grounds that she

held a prior belief concerning the possession of firearms by

convicted felons, which Marshall believed made her unfit to

serve. Second, Marshall argues that the district court erred by

refusing to agree to an ad hoc alteration of the parties’ agreedupon jury selection procedures for the express purpose of

ensuring that the petit jury would include jurors of a certain

race.Bothof Marshall’s arguments are meritless, and we affirm

the judgment of the district court.

I

Marshall’s first argument concerns the district court’s

denial of his motion to excuse a prospective juror for cause. A

fair trial requires an impartial trial of fact: a jury capable and

willing to decide the case solely on the evidence before it.

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548,

554 (1984). Accordingly, the voir dire process aims to weed out

jurors who hold personal biases so strong that their ability to

act as a neutral arbiter is compromised. Id. If a prospective

juror’s responses to voir dire questioning reveal a bias so
No. 13-2771 3

strongly as to convince the judge that the juror cannot render

impartial jury service, the judge should dismiss the juror for

cause. United States v. Brodnicki, 516 F.3d 570, 574 (7th Cir.

2008). 

That said, prospective jurors regularly come to voir dire

carrying a host of preconceptions about what the law does and

does not require. The sources for these beliefs are legion,

ranging from personal experience, orthe anecdotal experience

of friends, to popular music and Law and Order reruns.

1

Practically speaking, a preconception about the law cannot

warrant per se disqualification. If it did, we would be hard

pressed to find adequate numbers of qualified jurors. 

To account for that reality while also ensuring the

protection of each litigant’s constitutional rights, we have

endorsed a two-step process to assist district judges in

determining which prior beliefs warrant for-cause dismissal

and which do not. First, the court must determine whether a

prospective juror manifests a prior belief that is both material

and“contestable,”meaning a rational person could question its

accuracy. Thompson v. Altheimer & Gray, 248 F.3d 621, 627 (7th

Cir. 2001). If a prior belief is not material to the issues the juror

will be asked to decide, then the existence of that belief

prejudices neither party and the juror need not be excused. If

apriorbeliefisuncontestable—again, meaning unquestionably

correct—then there simply is no “bias.”

See, e.g., JAY Z, 99 Problems, on THE BLACK ALBUM (Roc-A-Fella Records 1

2003), for one rapper-turned-mogul’s widely disseminated take on the

Fourth Amendment. 
4 No. 13-2771

Where a prior belief is both material and contestable,

however, the court must proceed to the second step in the

analysis and determine whether the juror is capable of

suspending that belief for the duration of the trial. Thompson,

248 F.3d at 627. This is usually accomplished by question and

answer. The judge looks for an “unwavering affirmation of

impartiality,” id. (quoting United States v. Garcia, 936 F.2d 648,

653 (2d Cir. 1991)), without which the juror should be excused.

The requirement is satisfied by a juror’s affirmation, for

example, that she can set aside any opinion she might hold,

relinquish her prior beliefs, or lay aside her biases or her

prejudicial personal experiences. United States v. Allen, 605 F.3d

461, 464–65 (7th Cir. 2010) (internal citations omitted).

Ultimately, the decision whether to excuse a juror for cause

rests firmly within the discretion of the district judge, and we

will reverse only where we find an abuse of such. Id. at 464; see

also Aldridge v. Forest River, Inc., 635 F.3d 870, 875 (7th Cir. 2011)

(abuse of discretion occurs only where “no reasonable person

would agree with the trial court’s ruling.”).

Judge Durkin did not abuse his discretion, here. That is so

for two reasons. First, the prospective juror’s alleged bias was

immaterial. Second, even if it was material, the prospective

juror repeatedly gave unequivocal assurances that she could

set aside her personal beliefs and perform her duties fairly and

impartially within the confines of this case.

The prospective juror’s allegedbias was immaterial because

it had no bearing on the issues to be tried. There is no need to

reproduce the entirety of the relevant exchange between the

court and the prospective juror in this opinion; it suffices to say
No. 13-2771 5

the prospective juror was clearly under the impression that her

son’s parole conditions prohibited any person from possessing

a firearm in the house. But that is off-point. This case was not

about Marshall’s parole conditions. This case was about

constructive possession. The officers arrested Marshall, a

convicted felon, because they believed he was in constructive

possession of a firearm found in the residence—which would

be a felony regardless of what was contained in the documents

governing his parole. The prospective juror expressed no

opinion on what does or does not amount to constructive

possession of a firearm, nor on when it is or is not a crime for

a convicted felon to possess a gun. Her recollection of her son’s

conditions was therefore immaterial. 

That brings us to the second point: Even if the prospective

juror had carried in some misguided preconceptions about the

truly relevant issues, she repeatedly offered Judge Durkin her

“unwavering affirmation” that it would not affect her

judgment in the instant case:

THE COURT: Okay. Okay. And the fact that there were

conditions, nothing about that experience would affect

your ability to be fair in this case?

PROSPECTIVE JUROR: No.

* * *

THE COURT: Okay. And, again, that experience

involving your son, do you have any thoughts yourself

about what conditions of parole should be? And if

there’s any evidence presented one way or the other

about what the conditions are in this case, would the
6 No. 13-2771

fact that your son was on parole have any effect on

what you’d do in this case?

PROSPECTIVE JUROR: No.

* * *

THE COURT: Well, I guess the question is, if you read

that—there may be an issue in this case about whether

being in a house where there’s a gun may not

necessarily be a violation of parole unless when you’re

in that house you actually possess the gun or you

constructively possess it. None of that was an issue for

you when you read these conditions because you don’t

keep guns in your house?

PROSPECTIVE JUROR: No.

* * *

THE COURT: Okay ... the final question I have for you

is the one I asked the other jurors. If you were seated

there at the plaintiff’s table or seated with the

defendants, could you be—knowing yourself and your

background and your educational background and

your work experience, could you be fair? Would you

want yourself as a juror if you were seated out here as

one of the parties in the case?

PROSPECTIVE JUROR: (Nodding head.)

THE COURT: The answer is yes?

PROSPECTIVE JUROR: Yes. 

These responses unequivocally confirm the juror’s ability to

disregard her own prior experience and judge the case on the
No. 13-2771 7

basis of the evidence brought before her. If they are true, they

preclude a challenge for cause. Allen, 605 F.3d at 464–65

(collecting cases). Judge Durkin decided totake theprospective

juror at her word, and, as the trial judge, he was in the best

position to observe her credibility and demeanor. United States

v. Brodnicki, 516 F.3d 570, 574 (7th Cir. 2008). Finding no reason

to second-guess that decision, we defer to the discretion of the

district court.

II

Marshall’s second argument is unusual, and requires some

context. The parties agreed, prior to trial, to try the case to a

jury of eight, which would be selected from a venire of twenty.

The order in which veniremen were called for voir dire was

randomly assigned, with no knowledge of race, by the clerk’s

office. As it happened, of the first fourteen veniremen called,

none of the twelve whom were not excused for cause were

black. At that point, a petit jury of eight (non-black) jurors had

been selected. Counsel for Marshall, who is black, noticed that

three of the six remaining veniremen were also black, and

moved the court to expand the size of the petit jury to ten “in

the hope of getting one of the persons of color on the jury.” The

defendants objected and the court denied Marshall’s request.

Marshall believes that denial was an abuse of—or, more

specifically, a “failure to exercise”—discretion.

“The process of empaneling a jury is firmly entrusted to the

sound discretion of the trial judge and will not be disturbed

absent an abuse of this discretion.” United States v. Beasley, 48

F.3d 262, 266 (7th Cir. 1995) (quoting United States v. Rubin, 37

F.3d 49, 54 (2d Cir. 1994)). There was no abuse of discretion
8 No. 13-2771

here. But even quoting the standard of review is getting ahead

of ourselves. Marshall has suggested no remotely cognizable

legal harm to support this argument. It is established that a

litigant has no right to a petit jury which contains members of

his race or which fairly represents a cross-section of the

community. See Holland v. Illinois, 493 U.S. 474, 477–78 (1990);

United States v. Hatchett, 31 F.3d 1411, 1426 (7th Cir. 1994). So

how could the district court have erred by failing to ensure that

Marshall got one? Marshall did, of course, have a right to a

jury venire composed of a fair cross-section of the community,

Hatchett, 31 F.3d at 1426, but he is not challenging the

composition of the venire. He also had a right to see that no

state actor intentionally excluded any person from the petit

jury on account of their race, Batson v. Kentucky, 476 U.S. 79

(1986), but, again, Marshall is not claiming that any state actor

acted in such a way. In short, it is hard to see the legal basis for

Marshall’smotion, let alone any reason why the district court’s

failure to grant it might amount to an abuse of discretion. 

Marshall attempts to side-step this problem by framing the

district court’s denial of his motion as a “failure to exercise”

discretion. Munoz-Pacheco v. Holder, 673 F.3d 741, 745 (7th Cir.

2012) (“Failure to exercise discretion is not exercising

discretion; it is making a legal mistake.”). That is not what

happened. The denial of a motion is just as much an exercise of

discretion as the granting of a motion; were it otherwise, we

would have to reverse every time a trial motion was denied.

For that matter, we would have been faced with a difficult

constitutional question if the district court had granted

Marshall’s motion. Marshall openly asked the court to be “race
No. 13-2771 9

conscious” in jury selection—specifically, to expand the size of

the jury beyond what the parties originally agreed for the

express purpose of increasing the chances that Marshall would

try his case to at least one black juror. But “the Constitution

prohibits all forms of purposeful racial discrimination in the

selection of jurors.” Batson, 476 U.S. at 88. At least one court

has held that the principle of Batson extends to cover the facts

before us:

In sum, we find that the wrongful inclusion of a juror on

account of race should be treated the same as the

wrongful exclusion of a prospective juror on account of

race. Each situation violates the constitutional command

that jurors be selected pursuant to criteria that do not

take race into account, each deprives a defendant of a

jury that has been “indifferently chosen” in terms of

race, and each involves the exercise of judicial power in

support of a process in which race becomes dispositive

in terms of who can serve on a jury.

Pellegrino v. AMPCO System Parking, 486 Mich. 330, 347–348

(2010) (emphasis original). We need not decide whether we

agree with the Michigan Supreme Court’s conclusion, but we

can confidently say that we would have been more troubled by

the district court’s grant of Marshall’s motion than we are by

its denial.

In conclusion, each of Marshall’s arguments is meritless.

The district court did not abuse its discretion by refusing to

remove the prospective juror for cause, nor did it do so by

denying Marshall’s motion to adjust the agreed-upon size of

the petit jury upwards for the explicit purpose of making more
10 No. 13-2771

room for jurors of a particular race. The judgment of the

district court is AFFIRMED.