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# United States Court of Appeals For the Seventh Circuit

No. 12-3042

M AL VI N W A S H I N G TO N

, Plaintiff-Appellant,

v.

M I C H E L L E P AR

KI N S O N , Defen dant-Appellee.
Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the Nor thern Distri ct o f Il l i noi s, Eastern Di v i sio n. No. 1: 08 -cv-06 24 5 — Virgin ia M. K end al l , Judg e.
A RGU E D N OV E MB E R 4, 2013

— D E C I D E D D E C E MB E R 11, 2013

Before E AS T E R

B R O O K , K AN N E, and T I ND E R

, Circ uit Judges. K AN N E, Cir cui t Judge. Malvin W ashing t o n fi led a ci vil sui t allegin g that the offi cer who arr ested him d ur ing a double homi ci de i nv esti gation used excessi v e force. The jury found in fav or of the offi cer
. W

ashingto n now appeals, arg uing that the di st r ict court abus ed i ts di screti on in denyi ng W ashingto n’s challen ge for caus e to one of the juro rs who heard hi s sui t. But W ashingto n w ai v ed thi s challen ge, and we rej ect hi s arg ument.2 No. 12-3042
I. B A C K G R O U N D W ashingto n w as arr ested on January 30, 2007, as a sus pect i n the double homi ci de of Jess e Brown and Jacqu eli ne Lemons. Whi le the cri minal charges again st hi m w ere pending, he fi led

a civ i l sui t under 42 U.S.C. § 1983 again st Offi cer Michell e P ark i nson, allegin g that she kic ked hi m in the face and hi t hi m wi th a flashli ght whi le he w a s t r a nsported in a poli ce w agon following hi s arrest. A. V oir Dire The di stric t court judge conduc ted v oir di re of 28 potent i al juro rs to select the tw elv e-person jur y thatw ould hear Washi ngto n’s case. Th e judge explain ed to the prospectiv e juro rs th a t e ach juro r w ould be asked a seri es of questi ons. If a questi on touched on somethi ng a potent i al juro r preferr ed not to di scu ss i n open court, she could request a si debar

. The judge added that so me of the questi ons w ould cov er ci vil laws ui ts, admini strat i v e proceedings, and cri minal prosecuti ons, and carefully desc rib ed each legal proceedin g. When the court called Juror Ev ans, he answered questi ons concerning hi s demogr a p hic and fami ly backgro und wi th no i nci dent. The judge then asked Ev ans i f he ha d e ver been i nv olv ed wi th the ci vil o r cr i minal justic e system. Ev ans responded, “Not that I know of.” Upon prompting by the judge, Ev ans sai d he had no clue what the questi on meant. The judge then brok e the questi on down, asking Ev ans whether he had ev er su ed any one or b een sued, and whether he had ev er been arr e st e d

. Ev ans admi tte d he had been arr ested. When asked to e laborat e, Ev ans requested a si debar

.No. 12-3042 3
At si debar

, Ev ans explain ed that he had a DUI pending that had been pending for ov er tw o y ears. The court th e n a sk ed whether Ev ans had any stro ng feelings about the poli ce aris ing from that arr est. Ev ans sai d, “ I hav e no clue. I—I w as—I

w a s—I di ed at the scen e.” The court questi oned hi m further , and Ev ans clarifi ed that he had been in a motor cycle acc i dent after whi ch he had to be rev i v ed three t ime s. He sai d he suffered h ead i njuries in the ac ci dent b ut that he di d not hav e di ffi culty si tting and li stening or any lasting cogni tiv e problems. Throughout questi oni ng, Ev ans spoke slowly and w ould frequently t i lt hi s head b ack and close h i s ey es. W a s h i ngto n challen ged Ev ans for caus e, arg uing that “ e v e n though he says he d o esn’t hav e cogni tive problems, he does
seem to hav e tr ouble get tin g hi s w or ds out.” The di stric t court 1 consi dered W

ashingto n’s poin t and the n a s ke d P a rkin s on what she thought

. P ark i nson responded that she di d not thi nk there

w as enough to show that Ev ans had cogni tiv e di ffi culti es, and that ov erall, Ev ans seemed capabl e of being an i mpartial juro r
. The court conclud ed that it w ould not str i ke Ev ans for caus e. B. Offer to Empanel a New Jury When tr i al began, W

ashingto n w as repr esented by couns el, who presented hi s openi ng statement wi thout inci de nt. Defens e couns el then began hi s opening statement, in whi ch he described W

ashingto n at the cri me scen e kneelin g ov er one of t he vic tim s. At thi s poin t, W ashingto n interr upted, sayi ng , “Can y ou let the jury know that I ’ m r e lated to these people? They need to know that I’m relat ed. My si ster -in-law

. Make me

Washington had alre ady used hi s three pe rempto ry stri kes. 14 No. 12-3042
l ook li ke I’m a stranger .” W ashingto n’s couns el request e d a
r ecess, whi ch the court gr anted. Ev en after the recess w as gr anted, W

ashingto n conti nued to speak. The court cut hi m off and asked the jury to leave the courtro om. After the jury left, W

ash ing t o n sai d he w anted to address the cour t

. He sai d he w as concerned about the w ay the case
w as being presented and that he intended to fi re hi s appoi nted
couns el and proceed pro se. The judge told W ashingto n that he could r epresent hi mself i f he chose, but also told hi m t ha t hi s atto rney w as an exper i enced ci vil rights li tigator

. She also told W ashingto n he w ould hav e to refrain fr om any further outbursts, and t hat he should confer wi th coun sel about how to proceed. After a bri ef di scu ssi on, couns el informed the court that W ashingto n wi shed to proceed on hi s ow n. The judge excused W

ashingto n’s atto rney

, but invited hi m to sta y a nd

w atch the tr i al. The judge di scu ssed wi th W ashingto n how the tr i al w ould proceed. She then called a recess in or der to deter mine whether

a new jury needed to be called. After the recess, the judge asked W ashingto n whether he w anted to conti nue wi th the 12 juro rs who had or i gin ally been ch o se n, despi te the fact that they saw hi m ar gue wi th hi s at tor ney
. W ashingto n consented to cont inue wi th the o riginal jury

. But shortly there after

, W ashingto n deci ded he di d not w ant t o proceed pro se after all. W ashingto n’s appoi nted couns e l

w as sti ll present, and the court asked hi m to talk wi th Washi ngto n to see i f they could reach an agr eement. After a di scu ssi on, W ashingto n apolog i zed to the co ur t for hi s earlierNo. 12-3042 5
conduc t, the jury w as called ba ck in, and defense couns el began hi s opening statement ag ain. The jury ret urned a v erdic t in fav or of Offi ce r P ark inson. W ashingto n appeals that v erdic t, arg uing that the di stric t court i nappropr i ately deni ed hi s challen ge for caus e to Juror Ev ans. II. A N AL

Y S I S W ashingto n arg ues on appeal that the di stric t court e r r e d i n denyi ng hi s challen ge for caus e t o Jur or Ev ans becau se Ev ans w as i ncompetent to serv e as a juro r
. A l t ho ugh he preserved thi s arg um e nt by objecting to Ev ans during v oir di re, United States v
. Brazelto n , 557 F .3d 750, 753 (7th Ci r
. 2009), he later agr eed t o t he or i gin ally-selected jury and thus has

w ai v ed any r i ght to challen ge the jury ’s composi tion on appeal. W ashingto n explic i tly agr eed t o proceed wi th the
or i gin ally-selected jury when asked by the di stric t court judge i f he wish e d t o do so. As w e hav e prev i ously noted, a more obvious i ntentional relinqu i shm ent of a known right i s hard to i magi ne. Id. at 753. Thi s i s a tex tboo k exam p l e of w ai v er
. W a sh ing ton tr i es to arg ue that becau se he w as not present a t si debar , he d id not know of the for -cau se challen ge to Juror Ev ans, and thus could not hav e intentionally relinqu i shed any right. But an atto rney i s the agent of her cli ent, and an agent’ s knowledge i s i mputed to her prin ci pal. Bakery Mach. & Fabrication, Inc. v
. T

raditional Bak ing, Inc. , 570 F .3d 845, 848 (7th Ci r
. 2009) (atto rney is agent of cli ent); Frey v. Fraser Y achts , 29 F .3d 1153, 1158 (7th Ci r
. 1994) (knowledg e o f atto rney i mputed to cli ent).6 No. 12-3042

III. C O N C L U S I O N Gi v en W ashingto n’s explic i t w ai v er of any challen ge to the jury composi tion, w e ca nnot consi der hi s clai m. W e thus AFF IRM the deci si on of the dis tr i ct court.