Card v. United States

case, would elucidating rather than TERRY, Before STEADMAN appeal. serve to obscure the issues on RUIZ, Judges. Associate general description therefore turn to a We events, direct atten- underlying STEADMAN, Judge: Associate infra, tion to the substantive discussions During jury in a trial selection murder necessary particulars wherein of the case juror, 33-year-old one potential and the trial are discussed. male, cropped African-American had close govern- The evidence adduced hair and was wearing white shirt following. ment showed the prosecu- bow tie. He was Juror 333. The 90’s, Throughout appellant the 1980’s and tor exercised one of his strikes peremptory illegal drug operated Card an business against juror expressed this out of concern Murray, with his in partner, James South- juror might be a of Louis follower 28, 1990, Washington. east On October Farrakhan. The principal appeal issue on Murray day was murdered. The after the is whether this exclusion was constitution- murder, sought revenge, gathering Card ally discriminatory on religion the basis of loyal Murray’s avenge followers to brutal in violation of the doctrine of Batson v. Murray demise. Convinced that had been Kentucky, by drug Billy killed a rival named dealer (1986). Tolbert, Ray Card and his cohorts L.Ed.2d 69 lured apartment. Tolbert to a Southeast Once that, agree government We with the be- there, Card and several of his followers— cause this potential reversible error was including appellants Edwards and Rice— court, fairly presented to the trial we hands, binding participated Tolbert’s can “plain review for error.” At the feet, tape, mouth and and with duct re- time, principle ap- the Batson had been him. at- peatedly beating When Tolbert discrimination, plied only to race and in- through the tempted escape jumping day Supreme deed to this Court has window, story glass of closed second not determined whether it extends to reli- kill Card decided to Tolbert. Tolbert gion-related can find plain strikes. We no range by at point shot several times blank addition, error here. although we do Card, among and others. His Edwards prosecutor’s dilatory not condone the dis- dropped body was then out window covery compliance, reject appellants’ we car, eventually deposited and Tolbert’s numerous of reversible trial assertions er- days it found. In the where was later accordingly ror and affirm the bulk of the murder, Card, Edwards, following the convictions. We remand for the limited Rice, pains took to obstruct the and others murder, on purpose resentencing merged based all the investigation of Tolbert’s continuing revenge while to seek from oth- convictions. 18,127 trial, verdict, totaling lasted in 67 volumes 1. The from voir dire to is transcribed September April pages. from 1993 to 1994 and mur- and None of drug they suspected who these the other witnesses. er dealers Murray. dered on his behalf. appellants testified own counts, Card convicted seven Forty-two witnesses on behalf testified including conspiracy to commit murder government. important, of the Most (D.C.Code (kid- 22-2401), § felony murder follow- purposes appeal, were the (D.C.Code §§ 22- naping) while armed Bears, that ing: Kalvin who testified Card -3202), premeditated murder Tolbert; had Ida murdering admitted - (D.C.Code 22-2401, §§ armed while Stanford, had who also testified Card 3202). Both Rice and were con- Edwards murder; details acknowledged the counts, kidnap- on several including victed Brad- Metropolitan Police Detective James - (D.C.Code §§ ing while armed in- ley, who Edwards’ regarding testified 3202) felony (kidnaping) murder while culpatory police; Fred John- statements All armed. three were sentenced son, who that he Card testified witnessed terms, prison and now lengthy appeal. Tolbert, conspire to kill that on others night the murder he heard Tolbert Challenge II. Batson by Card, questioned repeatedly Religious Discrimination A. him; heard Lewis he the shots killed Yancey, supplied Appellants pros contend that the who testified he murder; used ecutor violated the federal constitution guns Card Craille, using had strike to exclude James who testified Card solely on organized meetings appellants grounds suspect with the affiliation,2 and and other Tolbert’s that the trial followers which ed guns per se error3 planned, supplied murder was court committed reversible allowing Appellants rely had to on conspiracy, for the lured Tolbert the strike. Batson, ambush, supra, in the in which the participated Supreme and had U.S. shooting. strategy at trial held that a exclusion of The defense Court race, credibility single on a essentially to attack even a based classi- Appellants necessarily grand jury distinguish crimination selection “struck between in religious religious It is society affiliation belief. 'under fundamental values of our indisputable juror may that a be stricken on integrity mined structural of the criminal beliefs, religious other of actual basis itself, not [was] tribunal amenable origin, or her wise in which would inhibit his ”) Vasquez (quoting v. harmless-error review’ ability given case apply fairly the law in a 254, 617, Hillery, 474 106 S.Ct. 88 U.S. (either par because of reservations about that (1986)); L.Ed.2d 598 see also v. Sen Tankleff (2nd Cir.1998) incompati ticular case or because inherent kowski, 235, 248 135 F.3d See, duty). bility jury beliefs between the (finding analysis inapplicable); error harmless 1109, Stafford, e.g., United States v. 136 F.3d 162, Norris, (8th v. 67 F.3d 170 Cir. Ford (7th Cir.) (“It proper 1114 would to strike be Peters, 625, (same); 1995) v. 36 635 Rosa F.3d pre him on the basis of belief that would (7th (same); Cir.1994) Beyer, n. 17 Ramseur v. basing vent decision on him from 1215, (3rd Cir.1992) n. 6 983 F.2d 1225 instructions, evidence and even if the belief denied, 947, (same), cert. U.S. S.Ct. 508 113 backing.”), other had on modified 2433, (1993). 124 L.Ed.2d 653 Sams Cf. denied, (7th Cir.), grounds, 1115 cert. 136 F.3d 945, States, (D.C.1998) United 721 951 849, (1998). 525 U.S. S.Ct. 123 119 defen (applying error review where harmless analysis apply to error does not alleged Harmless dant the trial court interfered during the discrimination strikes), unconstitutional peremptory cert. with his own use process. v. Fulmi selection See 1135, 977, denied, Arizona 528 120 145 U.S. S.Ct. 294, 1246, nante, 279, S.Ct. 113 499 U.S. 111 (2000). 928 L.Ed.2d (1991) (stating dis- L.Ed.2d 302 that racial (1992). subject scrutiny, fication to strict Accordingly, long applied violates we have “[qjuestions properly the rule that equal protection.4 holding This was ex preserved during proceed raised and juror’s gender, tended to a a classification examination, ings under and points not subject scrutiny, to intermediate in J.E.B. precision asserted ivith to indi T.B., 127, v. Alabama ex rel. sufficient 511 U.S. thesis, distinctly party’s cate will nor 1419, (1994). S.Ct. 128 L.Ed.2d 89 Like mally spurned appeal.” on Womack race, religion subject is a classification (D.C. 603, United scrutiny. strict Employment Div. v. 1996) Miller, (quoting supra, U.S.App. Smith, 3, 494 U.S. 886 n. 321-22) (em 369-70, D.C. at 384 F.2d at (1990). However, 108 L.Ed.2d 876 phasis original), in cert. neither Supreme nor the Court (1997). 1156, 117 S.Ct. 1097 has ever peremptory considered whether a into account all Taking the facts on religious strike based affiliation violates circumstances, appel we conclude that Minnesota, the Constitution. See Davis v. lants failed to chal raise constitutional 128 L.Ed.2d lenge prosecutor’s rehgious-affilia (1994) (denying pre certiorari on this precision tion-based strike with sufficient issue). government cise contends fairly apprise the trial court of the argument fairly since this was not present question constitutional before it. The court, ed to the trial our review should be complicated somewhat bearing facts limited to plain error. We address this question are as follows. scope of review issue first. Jury selection the instant case “In jurisprudential our system, place took at a time when neither appellate trial and processes synchro are Supreme this court nor the Court in contemplation nized that review will applied any category Batson to other than normally be confined to appropri matters race. Each side was given twenty-four ately submitted for determination strikes, they began which Avirom, court of first resort.” Miller v. Wednesday exercise on a morning after 367, 369-70, 127 U.S.App. D.C. 384 F.2d lunchtime, By month of selection. (1967). “Objections 321-22 must be strikes, prosecution had used six three of made with specificity; reasonable the against thirty them black males under judge fairly be apprised must as to the years age. Using of fact this as evidence question on which he being [or she] is case, prima arguing of a and that the facie asked to rule.” Hunter v. United young three black male defendants would 139, (D.C.), 144 cert. 506 aget “jury peers,” not be able to of their 991, 509, U.S. 113 121 444 appellants’ objec- S.Ct. L.Ed.2d counsel5 made a Batson Batson, defendant, 4. Before a defendant had to show different race from the see Powers 400, "systematic Ohio, 1364, exclusion” of members of his or 499 U.S. 111 S.Ct. 113 Alabama, suits, her own race. (1991); See Swain v. 380 L.Ed.2d 411 civil see Edmonson 202, 824, U.S. 85 S.Ct. 13 L.Ed.2d Co., 614, 759 v. Leesville Concrete 500 U.S. (1965). holding single of a exclusion (1991); per- S.Ct. 114 L.Ed.2d 660 and equal protection, sig- violated Batson defendant, emptory Georgia strikes the see Supreme analytic naled the Court’s shift from McCollum, right a criminal defendant's ato fair to a (1992). 120 L.Ed.2d 33 potential juror’s right impor- of access to an Batson, 5. There were six defendants in the case at the citizenship. tant indicium of su- selection, pra, time of each with his or her 476 U.S. at 106 S.Ct. 1712. Consis- shift, counsel, only Supreme tent with that own but three of the defendants the Court has (Mistrials jurors appeal. since ruled that Batson extends to of a are this were involved in jurors “pretext” of in black as a mere striking tion the exclusion “black and males jurors.” particular young black male Un Argument for racial discrimination. Batson, of opponent per der “once the Thursday this the point continued into session., challenge made out a emptory prima has Throughout, morning defense 1), (step of racial discrimination case consistently stressed that the ob- counsel facie pro the production burden of shifts jection to any particular was not strike but ponent the strike to come forward with systematic black rather exclusion of 2). explanation (step If a a race-neutral males “overall” and the “net effect of the tendered, explanation race-neutral is As an exam- pattern practice.” entire 3) (step trial must decide court then however, ple, counsel cited stricken Juror has opponent whether the strike “only whom the good as a citizen with proved purposeful racial discrimination.” ... is wrong young, that he thing Elem, 765, 767, Purkett v. black man.” (1995). Ac 131 L.Ed.2d 834 about After some debate inclusion asked the cordingly, prose thirty-six year-old jurors thirty-three explanations for cutor to offer the three so, “young category, in male” re- black challenged prosecutor strikes. The did in of inclusion the trial stating, typically sought solved favor part, that he court, jurors prosecutor the court employed who were or school. asked The trial court that there was three explain concluded most recent strikes violation, 333,6 no Batson and the males. As to Juror young black process strike resumed. male thirty-three year employed old black subject at issue strike peremp- its government completed explained appeal, prosecutor afternoon, tory Wednesday strikes on ex- because, he had stricken Juror three more of them to eliminate ercising there “no on the although indication jurors. jurors were black male These political affilia- record” of thirty- ages twenty-two, thirty-three, tion, the fact that Juror 333 had close six, of them were respectively, and two wearing hair and a white cropped employed. The of these second strikes tie to him that suggested shirt and bow day, was of 333. At the end of the Juror might an “affiliation with Juror 333 objection, counsel ar- renewed Batson who follow Louis Farrakhan people those guing strikes of em- fair to who could the Govern- ployed males the race-neu- exposed black given tral he had earlier for ment.” explanation ages religion to remaining maintain an as to two defen- members declared dants, acquitted.) appearance and a third was Since ob- that of similar to Juror adopted by (2) jections each were all counsel personally expressed the view that has counsel, distinguish other we for need jurors generally not convict black should appeal purposes made of this which counsel government urges a black defendants. The objection. which religious be- political and distinction between Supreme case. Court liefs in this The Arizona venirepersons, two 6. As to the other stricken non-religious recently suggested the that has that, prosecutor dire the stated based voir religious veni- objectively characteristics an questioning, did that one could he not believe may legitimately basis of a reperson form the fair, while the other had admitted that he Martinez, State v. strike. See it would not be able to follow the law as 795, (2000) (“The 999 P.2d Ariz. conspiracy charges. related to Veitch because he State did not strike Mr. Rather, Farrakhan, Mr. the State struck was Christian. that It is asserted Louis Islam, (1) occupation pastor because of his as both Veitch leader of the Nation of encour- explanations complete, prosecutor’s striking basis for stated (ie. court turned its attention back to defense affiliation to Farrak- Juror 333 Louis han) Appellants’ urged counsel. counsel really just “pretext” for strik- inquiry Batson be extended to black ing young explained black males. Counsel women, finding which the court overruled prosecutor had stricken Juror 333 case, prima no but made no counsel person but not Juror “another facie prosecutor’s mention whatsoever of the ex- cropped exact situation with close same planation striking for Juror 333. As to the hair, tie, just older. unemployed bow but existing Batson challenge, the trial court sex, clearly age age, It was and race.” ruled that it had found “racially no based “Counsel, I responded, The trial court systematic young, exclusions of black already challenges heard Batson jury.” males from the The court reasoned jurors respect with to all of the that were strikes, that all but one of the ie. thereafter, struck.” Soon the court asked strike of Juror were based on race- “any all counsel whether there was reason” “facts, observations, neutral and informa- pa- not to excuse the unselected voir dire responses tion and during obtained nelists, unanimously and counsel indicated Although voir dire.” it found no such ob- panelists there was not. The unselected jective for basis the strike Juror dismissed, were and the court addressed referring justification of that strike jury regarding scheduling selected as “less than acceptable” being based such, then dismissed them for lunch. The solely prosecutor’s on the “gut feeling,” the jury yet had not been sworn. court concluded that one strike based on At point, appellants’ counsel indicat- “gut feeling” systematic did not establish ed that concerning there were still issues exclusion, nor was it race-based. At the They previ- selection. referred to the time, same the trial court un- expressed objection young ous Batson to strikes of derstanding for prosecutor’s concern opinion black males and offered the about nullification a Farrakhan Wednesday two morning strikes of unem- experience follower based on its own ployed young “improp- black males were jurors refusing to convict. However, issue, paramount er.” as The peremptory process strike con- then counsel, stated was the tinued, apparently because some defense inability to offer “what I believe that the strikes remained at the time of re- perceived proper explanation” court as a challenge. complete, newed Batson Once That then striking Juror 333. counsel again counsel “renewed” the chal- Batson statement, following which we made the lenge, ground this time on the that Juror entirety appel- quote almost its since seated, who had closely since been lants’ Batson claim rests on it: cropped hair and had worn a tie on bow re- prosecutor] gut stated days [The both of the peremptory pro- strike accepted action it and I cess. the trial and the When court asked how the objection the court indicated some- Batson could be renewed when believe prosecutor thing yes, had not stricken to the effect of he had close Juror counsel clarified the hair and he have a bow tie theory being cropped did strike.”), strongly opposed validity cert. - U.S. because 'he’s of the -, 320, (2000). penalty.’ death ... Had Veitch a 148 L.Ed.2d 257 Mr. been 121 Nevertheless, appeal purposes of this we

social worker and had the State struck Mr. political religious forgiving, may Veitch are that the because social workers assume inseparable. question 333 were there would have been no about the views ascribed to Juror 590 honor, I regrettably, courtroom. Your juries and that we before —cases 1, 11 a basically hung panel ended in to

which would ask that the entire be honor, 1 ... jury. Your Number Juror expla- I think that the stricken because cropped He has a bow has close hair. gave that to prosecutor] [the nation yesterday.... had a bow tie. He tie on honor, improper.... was Your [the honor, prose- that undercuts [the Your him because prosecutor] simply struck saying that he argument. He is cutor’s] a male similar in young, he was black he is Muslim struck Juror because Edwards, Rice, Mr. and Mr. age to Mr. all, improper. I think first of that’s rejected I explanation by that Card improper and I was also shocked It is think prosecutor] and I don’t that [the statement, when the court condoned that a other proper light [the it’s one suggest- your honor. What the court is your with a and also juror tie] bow people religion that the Muslim ing is honor, object I have to to regrettably, practice cannot be fair or the Muslim join- that and the court’s comment about honor, I impartial. Your that prosecutor] in with there is ing [the joined that in that court shocked suggestion people some that Mus- prosecutor] represents [The comment. religion impartial. lim fair and cannot be may be his government and those But, honor, thoughts. your personal agreed, commenting defense Other counsel objected when proper not a that’s prosecutor’s stated reason was that —I jurors were sexist there were here who “discrimi- “reprehensible” and constituted fe- lawyers and the towards female segment of the against nation” “an entire law- defendant the female calling male counsel population.” Appellants’ black objected I strenu- yers “Honey.” also discrimination, argue racial continued when we had one who we ously however, substan- only arguably and the racial atti- believed exhibited certain the constitu- regarding tive comment made object and I would certainly tudes of a strike one tionality religion-based be- suggestion person a who that statement, up sit this counsel’s “We group since longs religious certain hum, man looks say and we like court and the freedom the First Amendment category without belongs suspect he of associ- expression and the freedom suspect having even established ation, that there religion, freedom is be enough in and would category of itself suggestion they cannot some jury duty.... I someone from to exclude jury process. of this addition to part the court can how just do understand that, Muslim my practicing client way thinking.” affirm during pre- numerous and on occasions from this record abundantly clear fact, It is matters, has, he wore [sic] prosecu- that defense counsel found honor, I have cap. regrettably, Your morally strike explanation for the tor’s say that’s an opinion Nonetheless, cannot agree we that is outside offensive.8 possesses derived classes, religion, including vi suspect certain split courts have on whether such 8. Other constitutions), and California constitutionally olate both federal are also offensive. strikes Somerstein, e.g., rt. Compare, United States v. ce 2249, with, (1991), e.g., (E.D.N.Y.1997) State (holding 114 L.Ed.2d 490 F.Supp. (Minn. 1993) Davis, affiliation); 504 N.W.2d religious that Batson extends to banc) Sanders, (en involving (concluding, strike in case 273 Cal. People v. 51 Cal.3d Witness, (1990) (indicat peremptory strikes P.2d of Jehovah’s Rptr. do not violate against affiliation based ing in dictum that strikes

591 claim, with appellants that it new and distinct Batson-like ie. dis- was unreasonable on affiliation. religious crimination based interpret the trial court to counsel’s argument essentially renewing as the ex- Second, objec- final at time of the objection, isting Batson “systematic ie. ex- tion, “new” was that information clusion” in general of blacks and young juror appearance had been seat- similar ed, black particular, thereby creating “pretext” males discrim- a basis for argument in relation to the racial discrimi- ination on the basis of race the ulti- therefore, court, nation had charge. mate constitutional issue. no as a reason to focus on this issue basis all, First of had defense counsel not for a claim. religious discrimination objected stated reason Third, although refer gener- counsel did for striking 333 at the time of the Juror Amendment, ally they First never strike, remaining silent even when the trial protection provided mentioned equal court soon thereafter that it indicated any legal argument whatsoever for extend- now challenges “heard the Batson with ing beyond Admittedly, Batson race. this respect jurors to all the that were struck.” might today, omission not be as important Although fact did necessarily ren- post-J.E.B., Supreme where the Court has objection der final counsel’s Batson un- already the relevant doctrine to extended timely, see Tursio v. United 634 However, protected other classes. in 1993 1205, (D.C.1993) (“Batson 1210 mo- Batson limited race. solely Appel- timely tion will be when made time lants’ failure to elucidate novel manner sworn”), before the is did put it allegedly which they proposed that the greater on onus defense counsel court apply reasoning of Batson was clear if they intended an entirely to raise therefore critical. denied, constitution), affiliation, iy federal religious cert. U.S. on 511 strikes based such 1115, 2120, Islam, constitution); 114 S.Ct. L.Ed.2d as the New 128 679 violate York Eason, 730, 917, (1994); State, 468, v. State v. 336 N.C. 445 S.E.2d 913 S.W.2d 496 Casarez (1994) (en banc) (suggesting (Tex.Crim.App.1995) 921-23 that strike of (concluding, affiliation, Pentecostals, solely religious involving based on without in case strike of belief, regard religious to relevant would vio peremptory religious strikes based on affilia constitution), denied, late North Carolina cert. constitution). tion do not violate the federal 1096, 764, 513 U.S. 115 S.Ct. 130 L.Ed.2d high A number state courts have indicat (1995). 661 that, constitution, regardless ed of the federal involving expressly For cases conflu such strikes violate or would violate their race, ethnicity, religion, ence of see Unit See, Martin, People state e.g., constitutions. v. Greer, 1076, ed States v. 939 F.2d 1086 n. 9 378, 147, Cal.App.4th 64 Cal.Rptr.2d 75 150 (5th 1991) ("Whether jurors Cir. Jewish are (1998) precise (calling issue im one first ‘race,’ viewed of a see as members Shaare

pression concluding based strikes on Cobb, 615, Congregation v. 481 U.S. Tefila affiliation, distinguished mere from reli 617, 2019, (1987), 107 95 594 S.Ct. L.Ed.2d belief, gious constitution); violate California religion, per or a exercise of defendant’s' Levinson, 492, 845, State v. 71 795 Haw. P.2d challenges emptory against subject them (1990) (holding 849 peremptory that a chal strictures.”), Batson’s banc en an aff'd "race, lenge religion, based on sex or ances court, (1992), equally divided 968 433 F.2d Constitution); try” violates Hawaii Thorson v. 1390, denied, 962, cert. State, 1998) (Miss. (en (1993); 721 So.2d L.Ed.2d 764 United States Clem banc) prohibit (holding mons, Cir.1989) (Hinduism), that state (3rd constitution 892 F.2d solely ed use of strikes based rt. ce affiliation); Langston, (1990); State v. Joseph 110 L.Ed.2d State, (Fla.Dist.Ct.App. Misc.2d 641 N.Y.S.2d 514-15 636 So.2d 780-81 1994) (Judaism). (N.Y.Sup.Cl.1996) (concluding perempto- tion, simply had not been suffi- important recognize to the issue Finally, it is from the race-based ciently differentiated inquiry structure the Batson case, ground “young or exclusion of pre-J.E.B. it Batson especially since counsel, the trial court to argued black males” they to the extent raised Defense appeal. ap- it Id. objection preserve to exclu- for Since a Batson prima facie affiliation, pellant allega- in Baxter “did not raise the religious did so sion based on argument age gender discrimination continuing in the of a tions context necessary specificity with the reasonable trial determination regarding the court’s fairly judge the trial of those apprise reasons for of whether plain for sufficiently objections,”9 we reviewed strike were presented Id. A like situation is under the traditional race- error. race-neutral here. analysis. Again, this under- based Batson al- standably masked defense counsel’s necessity particularly for a demand- a new and distinct leged attempt raise to articu- ing requiring standard counsel challenge under Raison-like constitutional clearly parameters given of a Bat- late con- reasoning, since counsel especially a challenge, especially on novel son-like by reiterating the argument cluded the addressed, is dem- ground previously prosecutor “simply that sentiment it- process here. The voir dire onstrated he was a [Juror struck because 333] full month. occupied in this trial a self to Mr. age male young, black similar' an five The trial itself took additional Rice, Edwards, a Mr. and Mr. Card.” As Plainly, imperative it was months. matter, practical it apparent seems composition of the any problems with the understand, trial did not court should, possible, if at all be resolved so, being presented with fairly that it was the trial prior to the commencement of completely legal distinct chal- new mandates any type since error of Batson lenge propriety to the constitutional trial regard any actual reversal without affiliation, given on religious strike based supra note prejudice to a defendant. no comment whatso- that the court made Furthermore, if example, counsel’s on ever the issue. objection religious discrimination based center, opportunity had been front and

In Baxter v. United (D.C.1994), to examine at the emphasized importance have been afforded could we detail, time, an issue now precise in further the trial court of the apprising viz., prosecution; objections splits appellants which argument upon legal here is presented in fact what is Only are then will the whether strikes based. political simply religious in the discrimination position trial court to address be discrimination, arguably governed a dif- any necessary fur- squarely, make issue (The here never prosecutor and take ferent test. findings, investigation ther nature, plainly religious phrase may appropriate. action used corrective particu- Baxter, only of the followers of a sought speaking on appeal the defendant individual.) Likewise, clearly more lar improper strikes been to establish problem, of the new discrimi- alerted to the nature age on the and sex made basis could have directed more concluded the trial court at 717. This court nation. Id. into the actual factual situ- inquiry had com- focused though that even affiliations, if juror’s ation vis-a-vis propriety age on the discriminá- mented clearly Sams, objected ... and stated (finding “counsel twice supra, 721 A.2d at 951 9. Cf. times”). grounds objection both inappropriate for her plain review where error any, views, and his actual or oth- did not properly preserve defendant erwise, vis-a-vis those of Louis Farrak- for challenge appeal Batson because he did panel already han.10 The venire been “request the trial to judge articulate dismissed, counsel, with the consent of all her overruling reasons on record for by any objection the time real was raised Shaw, objection”); the Batson v. 14 State subject peripherally interpretation even to (“To (Mo.Ct.App.1999) S.W.3d 83-84 Thus, religion-based. as defense counsel a preserve challenge, timely a Batson had even greater reason need to alert specific objection at must be made trial theory system- court that their of ... [especially two classifi- where] distinct young atic exclusion of black males was cations involved: and gender. are race being superseded now or supplemented only impermissible Batson addresses theory, a different completely focused race; upon strikes based J.E.B. v. Ala- upon single juror theory a aon T.B., hand, bama ex reí. on other religious involving discrimination First addresses gender counterpart. There- Amendment considerations. fore, Batson, generic a reference to with- here, more, Given all the circumstances we out preserve is insufficient to claim simply anything cannot conclude that more upon of error a gender-motivated based strike”) finely than bare bones of the hewn added); peremptory (emphasis cf. religion-based argument to now made us United v. Humphrey, States 208 F.3d appeal fairly presented on to was the trial (10th Cir.2000) 1190, 1204 (applying plain result, court. As a the trial court was not error argument legal theory based on necessity closely alerted to the consider- not stating, raised to trial court and “[W]e ing entirely this distinct of claiming basis where, beyond argument think it constitutional discrimination. Absent such here, testimony arguably supports the trial “reasonable specificity,” we review for suppression on a legal evidence Baxter, plain error. supra, argued basis in the different from 717; Hunter, 144; supra, 606 A.2d at motion to suppress, the defendant must Chandler, see also States v. United F.3d object at trial and the trial court inform (7th Cir.1994) 1431-32 (stating that legal excluding the new basis the evi- “[ojnly by pressing a claim purposeful, dence.”) in original). (emphasis is, racial by request- discrimination'—that error, plain appellants’ Applying ing the trial rule on whether the argument fail since it not “obvi must was purposeful, defendant has established ra- readily apparent” ous and in 1993 that cial discrimination —does a pre- defendant Batson applied category other than serve Batson claim for appellate review” race, specifi let affiliation holding alone defense counsel did not Baxter, cally. supra, A.2d at specific enough make challenge Batson (holding not commit merely she asked trial court did prosecutor when to ex- it plain why plain he wanted to strike a black error since was not well-settled Fredericksen, venireperson); Hopson jurisdiction Batson whether (8th Cir.1992) sex);11 applied Stafford, 961 F.2d see also (holding age argue Appellants argument supposedly that the trial court was in based was made after panel the venire was dismissed. fact need of individ- alerted to the for this sort however, done, inquiry. ual was This 11. In United 379 A.2d 951 Coleman argument the earlier context of an based on (D.C. 1977), arising a case from armed exclusion, religion- racial and not when the church, priests robbery in a of two Catholic (“The of counsel’s credibili- constitution- the-scene assessment supra, 136 F.3d at challenges based in no ty, position al status of and we are second- unsettled, enough is and this religion obviously guess a determination which ..., if was judge’s error it to show judge’s observation of informed error.”) error, not plain demeanor.”). A successful race- counsel’s challenge finding requires Batson based B. Racial Discrimination “racially that a strike was result Appellants briefly rather also racially intent or discriminatory purpose”; traditional argue that the denial their not impact enough. is disproportionate objection Batson was erroneous race-based York, supra, v. New 500 U.S. Hernandez give a prosecutor the failed because (cita- 359-60, (plurality) at 111 S.Ct. 1859 non-discriminatory reason for legitimate, omitted); 372-73, at 111 1859 tion id. S.Ct. 2 the of the Bat- peremptory (step strike (O’Connor, J., concurring). “Batson does challenge) pretextual because it was son a require prosecutor justify that a 3). by “the (step begin noting We challenge. a strike at the level of for-cause regarding persuasion ultimate burden of justifica- the require It does not also with, rests and never racial motivation requires unrelated to race. Batson tion be from, opponent of the strike.” shifts the prosecutor’s reason for strik- Purkett, 768, 115 supra, at S.Ct. 514 U.S. 12 juror’s the race.” Id. ing juror not be Moreover, give “great 1769. we defer 375, origi- (emphasis at 111 1859 findings regard ence” to a trial court’s nal). discriminatory intent. Evans See (D.C. 651 United 682 argu appellants’ When faced with 1996). context, In the Batson “the ment, prose the trial court ruled the question the ultimate decision on court’s the “gut” reaction to concerns cutor’s discriminatory represents finding intent by juror’s appearance raised the —“the the deference great of fact of sort accorded hair, tie, and other cropped bow the close York, v. New 500 appeal.” on Hernandez credible, and not race- issues”—was 1859, 114 L.Ed.2d U.S. its prac on own based.13 The court drew (1991) citing (plurality opinion, Bat 395 stating: experience, tical son). Area Washington Metro. Tran there aware that personally This court is n. 14 Jeanty, sit Auth. trials in this (“This been several (D.C.1998) have judge the finding by been 11 to there have court where prosecution’s peremptory strikes [that juries very same reason hung on non-discriminatory] turned his on- were “pur- precise phraseology Batson is be 12. The did indicate it would uncon- this court at venirepersons poseful racial discrimination.” all Catholic stitutional strike 86, 106 S.Ct. 1712. assumption on that “Catholics for cause class, impartially judge are as a unable at falsity testimony the trial court Appellants point of Catholic out that truth or prosecutor’s justi- at religious point their faith.” Id. characterized the clerics because of one However, acceptable.” In con- than Coleman did not address "less fication text, however, appears to have based the trial court constitutionality strikes affiliation, subjec- commenting prosecutor's religious except to note that on the been juror 333 which juror’s sense of concern about "[ijnquiiy as beliefs tive given necessary reasons where it is a contrasted with fact-based proper on voir dire ... challenged been that had also predicate peremptory chal- for other strikes to the exercise of as race-based. Id. lenges.” at 954. prosecutor]. political mentioned a worker based on beliefs inferen- [the As fact, matter of tially this Court tried one of postal held all workers was a those cases. race-neutral explanation). Appellants argue that a white man sure, inquiry To further dressed like Juror would not juror. could have been made How stricken. The trial court could been rea ever, made it Supreme Court clear sonably conclude that this did not automat summary per curiam reversal ically translate requisite racially into the prosecutor’s explanation “per need not be discriminatory purpose, given intent or suasive or even is- plausible.[T]he apparently composition limited validity sue is the facial of the in question. In the group recent case of Purkett, explanation.” supra, Blanding, United States v. 250 F.3d At stage 115 S.Ct. 1769. this second (4th Cir.2001), U.S.App. LEXIS inquiry, Batson issue is not defense black counsel for a defendant whether makes reason sense but juror struck a white car whose had a Con face, whether on it denies equal protec- its flag bumper juror federate sticker. The 769, tion. Id. at S.Ct. It 115 1769 is not disclaimed having to do “anything with until step persuasiveness the third that the sentiment,” but defense counsel said justification may of the become relevant— he nonetheless was concerned about the step where the trial court must deter- it. The trial ruling court’s that the stated mine genuineness explanation was a pretext purposeful reason racial and “implausible where an or fantastic” (each discrimination of defense counsel’s explanation may well be found a pretext jurors) strikes had been of white was re 768, for purposeful discrimination. Id. at appellate

versed court. That court 115 S.Ct. 1769. is not the That case be- held defense inference coun record, sum, fore us. on this we cannot sel had drawn “permissible, persua was a depart “great granted from the deference” sive, race-neutral in the inference context to the trial court and its effective deter- of a peremptory under challenge Equal strike, mination that based an upon Protection Clause.” See also United allegiance Farrakhan, inferred to Louis re- Hinton, (7th 396, v. States 94 F.3d 397 Cir.1996) genuine lated to race-neutral concern (striking juror because he wore a regarding juror’s potential desire to X” “Malcolm hat was a race-neutral rea hamstring any son; possible conviction. “[t]he focus was on a perceived militant anti-government aspect X, Alleged race”);

of Malcolm III. Trial his Errors United 1228, (6th Payne, v. States 962 F.2d 1233 Giglio, Brady, A. and Jencks Act Viola- Cir.), denied, 1033, cert. 506 113 U.S. S.Ct. tions 811, (1992) 121 L.Ed.2d 684 (striking Appellants prose- because of association “black next contend activist reason); groups” Brady,14 Giglio,15 was not a cutor committed race-based see various 500, State v. Pepper, also S.W.2d and Jencks Act16 failing 855 503 violations (Mo.Ct.App.1993) (striking adequately black postal Brady disclose evidence. 83, Brady (2000); Maryland, § v. U.S. see 373 83 S.Ct. 16. 18 U.S.C. 3500 also Jencks v. 1194, (1963). States, 657, 1007, 10 L.Ed.2d 215 77 United 353 U.S. S.Ct. 1 (1957). L.Ed.2d 1103 States, 150, Giglio v. United 92 763, (1972). S.Ct. 31 L.Ed.2d 104

596 States, Bellanger v. United 548

Giglio require government disclose (D.C.1988) 501, (citing & n. United exculpatory to a 503 6 evidence which is both 408, 793 411-12 Ingraldi, States v. F.2d or inno guilt defendant material to (1st Cir.1986) (due “[ejvidence requirements process cence, that an ac including after Brady met where material disclosed impeach government cused can use trial, if States, beginning preju accused not witness,” Brown 726 A.2d v. United preparing presenting diced in (D.C.1999), denied, 149, n. 3 cert. 528 156 Schotten, case)); 146 see also Norris (2000), pro 967 U.S. S.Ct. (6th Cir.), denied, 525 F.3d cert. prosecutors knowingly putting hibit from 348, 142 U.S. L.Ed.2d testimony, forth false Bruce United (1998) does not (Brady generally apply (D.C.1992), cert. “a rather to “a com tardy disclosure” but disclose”). plete failure to (1993). L.Ed.2d 496 hand, On the other the Jencks nondisclosure, Even assuming by govern made Act relates to statements however, is the evidence not “material” witnesses, regardless of their excul ment reversal not warranted “absent impeachment patory nature or value as showing sup further ‘disclosure material. pressed competent evidence to counsel imposes an Act affirmative The Jencks would have a different result reason made ” to duty upon government preserve the States, ably Farley probable,’ v. United and, mo- statements of its witnesses (D.C.1997) 887, (quoting 694 A.2d 889 defendant, tion of the to disclose 419, 441, Kyles Whitley, v. 514 115 U.S. Act statements. The de- produce those (1995)) (excul 1555, 131 L.Ed.2d S.Ct. 490 fines “statement” as either “a written Brady), evidence under patory aff'd after by witness and [a] statement made remand, (2001); 225 767 A.2d United or signed adopted approved or otherwise Huddleston, 214, 222 v. 194 F.3d States or a by “recording, or a [the witness]” Cir.1999) (1st evidence un (impeachment “ thereof, is a transcription which substan- Giglio), testimony der or unless ‘the false an oral state- tially verbatim recital of any could ... reasonable likelihood ” witness recorded [a] ment made judgment jury,’ the the affected contemporaneously making the with States, 807, A.2d McNeil v. United 465 810 oral statement.” [the] (D.C.1983) Giglio, (quoting supra, 405 U.S. 282, 763). 154, context, “In

at United ‘[a] 92 S.Ct. McGriff (D.C.1997) 18 (quoting U.S.C. probability” probability 287 “reasonable 3500(e)(1) (2)), § U.S. in the & cert. 523 to undermine confidence sufficient ” 1542, 1086, 140 690 supra, 889 118 S.Ct. L.Ed.2d Farley, outcome.’ at (1998). act not A violation of this will Bagley, (quoting United States sanctions; rather, 3375, “the L.Ed.2d 481 result automatic S.Ct. (1985)). Act the must materiality of administration of Jencks evaluate the We experi ‘good at on a entrusted sense and the evidence issue cumulative basis. subject ‘appro judges the trial Kyles, U.S. at ence’ of supra, 514 However, priately appellate limited review delayed disclosure of ex ” (as v. Au (quoting Id. United States op or evidence courts.’ culpatory impeachment disclose) genblick, 393 outright an failure to posed to (other (1969)) quota internal appellant if an L.Ed.2d require

will reversal omitted). “Even and citations prejudice delay from the itself. tions establishes less though provides prejudiced Jencks Act for sanc- not because tions when the statement of a witness is apprised exculpations fact of claimed produced, the choice of sanction is Although the witnesses’ motives to lie. entirely discretion, within the trial court’s requested much of the material to impose any as is decision whether appellants initially, was not disclosed sanction at all. We will not reverse trial majority requested material was ruling court under the Act Jencks unless turned over to trial. appellants during that discretion has been Id. abused.” appellants More importantly, were able Delayed employ truantly those disclosed materials Disclosure in their cross-examinations the relevant trial, lengthy Over term of the together, witnesses.18 Taken these factors appellants raised numerous claims under necessary rebut demonstration that carefully these doctrines. The trial court appellants prejudiced, were or that violation, and, examined each claimed Looking abused its discretion. necessary, steps where took either sanc light, the claims of in this no prosecution rectify abuse we find alleged tion the occasions, On inequity. more than several reversible error. hearings

the trial court held to determine violations, Of the claimed numerous violations, the extent of and whether majority represented late disclosure or not sanctions would follow. On two Brady and material. Giglio Appellants’ occasions, the trial court sanctioned the counsel exploit were able to this material prosecutor for discovery violations and in defense, part as they their are formed of the sanctions and the prejudice arising unable to show reversible namely, behind reasons them— tardy they from the point prosecutor had failed to disclose evidence disclosure— no difference earlier disclosures would required by law.17 In the relatively cases, respective have made in their rare instances where the court ruled alleged exception opening arguments. the of their Brady Giglio material need disclosed, Where, here, not be appellants were neverthe- to as the defense was able 17. In addition Appellant to these specifically adverse-inference in- Edwards also claims structions, responded the trial court to other government erroneously suppressed discovery striking violations an identifica- exculpatory an appel statement he made to defendants, tion of one of the precluding However, investigator. lant Card's the state testimony police the of a officer. given appellant ment was to a defense investigator, possessed and Edwards' counsel example, 18. For witness Fred Johnson's in- early January the as statement as 1994. Thus exploited consistent statements were in cross suppression Brady there was no of material. Likewise, examination. late the disclosure of See, Johnson, e.g., Rector v. 120 F.3d 560 relating notes to witness Ida Stanford's testi- (5th Cir.1997) ("failure to discover informa mony videotape and a of her with discussions tion knew [that defendant or should have police the did not constitute reversible error know was the result of a lack dili about] appellants’ because were able to cross counsel gence part”), on [defendant’s] cert. effectively examine the witness with both the Also, 522 S.Ct. 140 L.Ed.2d tape. although and the favorable Brady a rea heard substantial evidence

suppressed evidence raises Bears, government gave and treatment the probability that disclosure would sonable fabricate, result, motive to potential not thus the produced a different criminal and late dis well as his extensive record repeatedly a prosecutor’s whether prior history drug af- abuse. Brady might under otherwise closures prejudice allegedly 20. "favorable” treatment in- Though This we discern no reversible here, uttering against prosecu charge cluded rightly expect dismissal an we note “we Bears, by the direct or indirect intervention uncertainty tors to resolve all reasonable sentencing materiality prosecutor hearings, in two allow- potential exculpatory about the ing guilty pleas a prompt to withdraw his in disclosure.” Bears evidence in favor of Edelen, year case which he faced a minimum five supra, The consis in 627 A.2d subsequently re- were and for which he tently in this case far sentence late disclosures time, however, jail prosecuting Bears for Ultimately, we are ceived no proper. from house, halfway disciplinary escape his from a and allow- case but mindful that this is not a ing special furloughs prison. from Bears appeal. rather a criminal examination, direct On Bears unopposed admitted basis of an release motion after times, that he was arrested nine and con- grand jury. he testified before the Bears times, victed five including convictions for escaped also admitted that he from the armed robbery, possession and of cocaine halfway charged house but was never with with intent to distribute.21 He also testi- a crime for that action.24 using fied to both distributing illegal Bears was cross-examined with the aid substances, and that he was a crack addict transcript of a demonstrating that at the time of the relevant events.22 Bears in prosecutor appeared this case at Bears’ informed the jury recently that he had sentencing then-pending charges, on his been arrested on charge possession one prosecutor, another at another of cocaine with intent to distribute sentencing hearing, indicated that Bears (PWID), charge PWID, one of attempted may have been forced a plea. into He was charge one a carrying pistol without cross-examined on the basis of another license, pleaded that he had guilty to the wherein, transcript at a sentencing hearing charges, and that he mandatory faced a for pistol charges, the PWID and minimum Bears’ year five up sentence to a maxi- attorney in represented open mum in court that prison. of life He further admit- case, because of his in off, cooperation ted that the this he sentencing had been put might and that he had make a plea. entered into a limited motion to withdraw his use immunity Furthermore, agreement that, government Bears admitted after in exchange for testifying.23 agree- That testifying grand jury, before the he was ment was entered into evidence. check), arrested for uttering (stealing a that following the arrest he had called the cross-examination, On Bears denied that case, prosecutor in this and that the government agreed charge not to him (“no charge subsequently dropped was pa- However, plot. murder he admitted pered”). He was cross-examined exten- that he had been govern- informed sively regarding possible his bias arising ment that he could have been charged, but from this treatment. While disclosure of after agreed case, he testify deals, allegedly they if explicit indeed charges brought were never against him. existed, required by Likewise, Brady Giglio, Bears denied that he placed presentation witness to the house, in a halfway rather than prison, as something demonstrated far less than an result of his testifying, but nevertheless unblemished The admitted that he facade. was mark- prior was incarcerated edly exposed potential involvement with government the witness’s was in fact placed halfway credibility. bias and lack of house See Johnson where he passes, received weekend on the v. United 559-60 cross-examination, 21. On pleas charges, whereupon Bears admitted that to two of these merely guess these numbers were and ad- government charges. dismissed those mitted to a number of other arrests and con- specific motion made reference to the fact dating ranging victions back as far as cooperated that Bears with the murder trial conduct, bail, disorderly jumping from to to any promise "without of benefit.” He was distribution of cocaine. subsequently sentenced to time served for the attempted PWID. 22. Bears even admitted that he awas "crack- head.” however, 24.According testimony, to he his years following 23. In almost two prison to a the was returned result of trial, testimony attorney Bears’ filed an escape. unopposed guilty motion to withdraw his (D.C.1988) (“In jury’s report government regard- of ... the light quent both the from “the ing cooperation, [sentencing] her and aware independent defense counsel’s Judge disregard my guidelines and [could] implying ness of the the circumstances mandatory the not sentence me to questionable credibility, witness’ bias and that explained govern- She the years.” no dis probability we find reasonable that to file required guidelines ment was a [alleged Brady material] closure the behalf, that if departure letter on her appel would affected the outcome of have filed, sentencing judge was need one trial.”); lant’s Hawthorne v. United However, it. she that not follow admitted (D.C.) (in evaluating an agreement if broke of her she the terms violation, may ... alleged Giglio “[w]e departure provision” “the letter would be that credi [the witness’s] consider the fact “annulled.” bility successfully was undermined in other ways”), testified, cert. she receive After Stanford did (1986). 93 L.Ed.2d departure a letter and was sentenced to years probation. Appellants five Second, that rele appellants claim post- failure to argue disclose Giglio Brady was not vant material in testimony departure Giglio violated wit produced respect government with to of the light government evidence Specifically, they Ida con ness Stanford. the wit- pre-committed itself assist tend that on government intervened However, ness. was cross-ex- Stanford mandatory a behalf Stanford reduce extensively amined on issue of the twenty year sentence on an unrelated in government’s pending involvement her charge probation, among other claims.25 her sentencing, including the fact However, testimony, in light trial until her sentencing was continued after a appellants adequately fail to demonstrate in testimony this case. probability reasonable that such disclo post-testimony departure found sures undermine verdict. given government represent- letter Bears, Like informed of was decision nothing strategic ed more than includ- past, Stanford’s extensive criminal testimony. her forego action until after in arms and ing her involvement drugs event, necessary find we fail to in “very large drug her role as a dealer in an prejudice any difference between she this town.” She also admitted that drug who perjurer admitted dealer trial. had lied under oath a previous departure letter possibility faces further that had entered She testified she of her being light sent on her behalf agreement government, an with the perjurer and testimony, an admitted whereby cooperation report- guaranteed depar- her would drug dealer who is sentencing judge pending testifying.26 ed to the in her ture letter prior Johnson, 559-60; that, supra, 537 A.2d at case. She based on the subse- stated proffer that a medical testified that a contact was made recent Because Stanford preg- exchange exam confirmed Stanford was not given visit her children preg- assuming Even nant. Stanford testimony, significant for her there was no nant, despite proffer, there indica- is no prejudice failure to dis- from the knowledge jury's additional tion that bargained-for close the as a favor. visit favors, already above Stanford testified those Appellants' regard failure claim with to, the verdicts now would have undermined visits Stan- to disclose contact evidenced appeal. pregnancy also fails. ''appearance” ford's that, Indeed, appellants' request, suggested an On the court ordered other courts weakening significance inquiry pregnancy, and "rather than regarding Stanford’s Hawthorne, supra, 504 A.2d 592.27 a Jencks Act violation in relation to the Moreover, departure the mere fact that a government’s grand failure disclose the was, fact, letter sent after her testimo- jury testimony Bradley of Detective fails. ny does not indicate that Stanford Sanctions for such actions are left to lying, but rather supports her version of judge. McGriff, discretion of the trial agreement. supra, 705 A.2d at 287. do not think We

Likewise, appellants have failed to artic- the court’s adverse-inference instruction to any ulate prejudice reversible from the informing govern them of the other claims of failure to required disclose an ment’s failure was abuse or an other discovery material. Appellants used a dis- sanction, inadequate especially wise where missed motion for against sanctions appellant was afforded opportunity prosecutor to Yancey, cross-examine Lewis effectively and extensively cross-examine an regarding alleged meeting with the the detective with previously undis prosecutor presence outside the of his at- closed testimony. See Woodall v. United torney. Even though tape an audio States, 1258, 1265(D.C.1996) (ab 684 A.2d Yancey indicating that the gun used “gross negligence” sent or “significant may Card belonged to someone else prejudice” in failing preserve Jencks disclosed, was not appellants fail to ad- material, court’s decision not to strike tes dress ownership how the murder discretion), timony was not an abuse of weapon was material to issue in the denied, 1278, cert. 520 U.S. case. With regard to witness James (1997); 137 L.Ed.2d 354 Williams v. Unit Craille, although prior inconsistent (D.C.1978) ed revealed, statements were not nev- Craille (affirming trial court’s refusal to strike ertheless testified that he had previously testimony despite police evidence that offi made the false statements. Even without visits, disclosure of alleged deliberately destroyed contact cer appel- Jencks materi al). lants’ counsel acknowledged that Craille substantially impeached”

“was in cross-ex- amination. Napue B. Violation Inadequate Sanction may “A prosecutor knowingly evidence,

Finally, present false permit Edwards’ claim that evidence or gave an inadequate false, sanction for go known to be A uncorrected.... credibility purposes agreement testimony pleasing an prosecu- favor make his to the treatment, may able tor.”). tentativeness increase its relevancy. promise This is because a to rec (without it) leniency ommend assurance of Likewise, appellants' the court’s denial of may interpreted by promisee as contin request government disclose Stan- gent upon quality pro of the evidence file, allegedly ford’s INS which would have agreement, duced—the more uncertain the government’s revealed the assistance in Stan- greater the incentive to make the testimo avoiding deportation exchange ford for tes- ny pleasing promisor.” Boone v. Pader tifying, prejudicial. was not Whether or not ick, (4th Cir.1976), 541 F.2d cert. (and agreement such an existed there is no 97 did), appellants evidence that it offer no ex- (1977); Campbell L.Ed.2d 811 see also planation jury’s knowledge to how the Reed, (4th Cir.1979) ("[A] F.2d 7-8 agreement this additional would have harmed promise leniency might tentative be inter credibility any more than her testi- Stanford’s preted by contingent upon a witness as mony actually revealed. Thus, testimony. nature of his there would be greater try incentive for the witness to government.” the entitled to a new treatment Townsend accordingly

defendant is (D.C.1986), States, 994, 999 any likelihood v. 512 A.2d trial if there is reasonable United 1052, 107 testimony have affected rt. 481 U.S. that false could ce (1987). Thus, of the Felder v. Unit- 95 L.Ed.2d 843 Stan judgment jury.” the (D.C.1991) States, immigra eventual and her ed 595 A.2d ford’s sentence 264, 271, Illinois, alone posture tion cannot suffice evi (citing Napue (1959)) (oth- or misleading testimony. dence of false 79 S.Ct. L.Ed.2d failed to demon quotations appellants internal citations and omit- Because have er ted).28 testimony al- was actu theory, appellants Under this strate Stanford’s Napue claimed ally misleading, of false or lege testimony Stanford (cid:127) misleading, fails. Bears was false violation “carefully prosecutor crafted” but Napue In violation asserting claim, appel- as such. To succeed testimony, appel of in the context Bears’ establishing the burden that: lants bear of gov that the point lants to Bears’ denial (1) prosecution’s case included false him promised favors to other any ernment (2) knew, or testimony; prosecution including inability his immunity, than use falsehood; known, should have of the prosecutor whether the to remember (3) testimony the false could sentencing. Ap at his appeared this case judgment jury. of the See affected which rely transcripts show pellants 269-71, Napue, supra, 360 at at one appeared prosecutor that the had 1173; Griley, F.2d United States v. hearings, as sentencing well prior Bears’ (4th Cir.1987). 967, 971 testified, that, Bears re the fact after he In an effort to false expose Stanford’s However, al a lenient sentence. ceived fact testimony, appellants rely on the pres admitted though prosecutor testified, her detainer after Stanford INS healing, prior sentencing he ence at Bears’ lifted, a letter sentencing departure had that the taken explained government behalf, only re was filed on her and she Bears’ sen to reduce no affirmative action probation pending charges, on her Indeed, ceived which transcripts as tence. though on the she had denied even stand government sertedly promises evidence leniency promised particular square that she neither equivocal, involvement are departure letter. Howev possible contradicting above Bears’ ly prosecutor er, judge, prosecutor, before the direct evi testimony, presenting nor government that the had uncondi the immu agreement beyond denied of an dence letter or fact tionally agreed departure file a which nity to Bears testified. receive re deportation eventually did regard to intercede to her that Bears addition, to overcome already is duced sentence insufficient status. Stanford govern govern acceptance future the trial court’s possibility testified to agreement other ment’s assurance that no ment intervention on her behalf terms Townsend, supra, reached. pending supra text had been of her sentences. See (lesser per is not Finally, sentence accompanying 23-25. we 512 A.2d other, knew, any to eschew fact-find- appellate or should have known of its exis States, ing.”); Dickerson v. tence, United and knew of the facts “essential (D.C.1996) (“We A.2d ... will not permitting him to take advantage any disturb the trial findings court’s factual 16; exculpatory supra evidence.” See note they clearly unless are or not erroneous Rector, Likewise, supra, 120 F.3d at 560. record.”). supported by event, any In the trial court’s adverse-inference instruc even if we were to assume that Bears’ adequate response tion was an to the fail testimony was indeed inaccurate in some ure timely grand disclose the detective’s particular, the untruthfulness harm- III, jury testimony. supru See Part A. whole, light less in testimony his as a which jury significant gov- intimated to the Finally, newly while surfaced ernment involvement in Bears’ past and may evidence give rise to the need for pending cases and exposed significant reconsideration of a pretrial suppression credibility issues on cross-examination. decision, States, see Scales v. United Hawthorne, supra, 504 A.2d at 593 (D.C.1996), and evidence of (based on past substantial evidence of drug drug use is relevant to the determination use, factors, among other defense was (Cullen) voluntariness, Byrd see “successful, to a degree, considerable in (D.C. United impeaching [the witness] as to both bias 1992), the “new evidence” here was far ... and to credibility general,” in significant. from Edwards claims that “failure to correct [the false tes- witness’s] during trial the officer suggested that the therefore, timony not, ... any could may confession have been affected Ed likelihood, reasonable have affected the use, illegal drug though wards’ even at the judgment jury”). of the suppression hearing the officer testified that Edwards was not under the influence C. Edwards’ Confession fact, trial, drugs. at the officer Appellant argues Edwards that the trial testified only alleged Edwards was an court erroneously admitted his confession drug though the officer had no addict — First, for three reasons. he claims that knowledge first hand of this fact—and reit the late Brady disclosure of material —his erated that he saw no drug evidence of use own adversely affected the confession— at the time of confession. The trial court’s outcome suppression hearing. Sec- ruling initial on the suppression of the ond, court, argues he trial adequately confession was therefore still response government’s late disclo- supported by record evidence that Ed sure of grand jury testimony, erroneously wards was not under the influence police failed to strike the detective’s testi- type of substance at the time of the confes Third, mony. alleges he error in Moreover, trial, appellant’s sion. coun court’s refusal to suppres- reconsider its officer, extensively sel cross-examined the ruling despite sion new evidence of Ed- using prior grand jury testimony, re wards’ status as a cocaine addict at the garding physical Edwards and mental time of his confession. confession, state at time of the and the previously explained, specifically As instructed to consider Edwards’ confession, investigator statement made to a defense if and if it determined material, Brady was not in that voluntarily given.29 he either that it was Appellant prosecu- Rice’s claim that the ed confession constitutes reversible error fails improper tor’s comment on Edwards' redact- because the trial court instructed the Merger equal I protection

IV. would hold that prohibits doctrine used peremptory strikes argues felony Appellant Rice that his on the basis of discriminate merges murder conviction with the under affiliation, prima and that where is a there case lying felony, kidnaping. Simi religious facie case that affiliation is the larly, appellants argue Card and Edwards strike, must, for a trial reason the court felony merge that their murder convictions minimum, dire conduct voir to determine degree with their convictions. first murder juror’s religious whether the prospective agree government We and the concedes beliefs, affiliation, religious rather than merge. that the sentences v. Unit Catlett disqualify serving from on the person States, (D.C.1988), ed 545 A.2d I conclude in this particular jury. cert. was prima case facie case made (1989) murder (felony 102 L.Ed.2d 803 prosecutor peremptory exercised strike (Samuel) underlying merges felony); the potential to eliminate a basis States, Byrd United presumed his with the Nation affiliation (D.C.1986) (en banc) (first degree 1036-37 As dire was of Islam. no voir conducted premeditated degree murder and felo first into in inquire whether he was fact so ny murder We remand merge). therefore affiliated, so, and, if whether his beliefs the the convictions to trial court for serving juror in disqualified him from as a kidnap- limited purpose vacating Rice’s case, the strike at peremptory issue conviction, ing and Card’s and Edwards’ in se impermissibly discriminated convictions, felony murder and for resen- process. per se lection This constitutes tencing. appel In all other respects, v. Fulmi reversible error. See Arizona lants’ convictions are nante, 279, 306-312, 111 Affirmed. (1991). 1246, 113L.Ed.2d 302 Religion-Based Challenge The to the Per- RUIZ, Judge, dissenting Associate Preserved emptory Appeal. Strike was part, part:1 concurring for record, observes, correctly de- my majority review of the the issue As the Upon prosecu- challenges discrimination on the basis of fense improper counsel’s2 initially in the were per- affiliation exercise of tor’s strikes perception with the emptory challenges primarily raised focused on counsel’s prosecutor’s peremptory trial court with and that strikes particularity sufficient timeliness, rejected it effort to exclude systematic and the revealed Thus, it voir young jury. on the before black from the As properly merits. males error, however, full, plain progressed, prosecu- the court not review. dire and the (no improper separate disregard prosecutorial the con reversible two occasions error co-defen fession as evidence Edwards’ prosecutor's "immediate comment where guilt when dants’ the confession argument any rephrasing mitigated —once closing arguments. once before admitted and prejudice appellants”). addition, following immediately almost closing, prosecutor statement made in join majority’s I conclusion that corrected himself and informed Brady, Giglio various under and Jencks claims Ed of Mr. and Mr. "the statements Card require do not reversal. in ac wards ... be used to show can tions, guilt. use only to show their You can’t were co-defendants in the trial There six purpose, except for those those for other courL, represented. separately each one individually.” people Freeman [two] (D.C. 1997) United strikes, explained tor defense information and responses during counsel’s obtained arguments evolved dire,” and focused on the the voir but on the “gut affiliation, challenge based on religious and if you particular- will reaction and he cited in no objected uncertain terms to the tie, ly cropped the bow the close hair and strike of 333 on Juror such basis. other issues.” The trial court concluded “[considering the fact that all other majority bases its conclusion that responses have adequately been made only plain necessary error review is on the grounds prosecutor], [the I have to allow him that 1 objections defense counsel’s untimely were sufficiently precise gut on his feeling.” to alert the trial judge legal basis After completing the last two rounds of First, challenge. for the I disagree. the peremptory challenges discussing and cer- timing objection of an to a tain brought up by other new matters strike cannot be made before the reason prospective jurors panel, on the the trial Here, for the strike is revealed. reli- judge, objection, without released the re- gious basis for the strike of Juror 333 maining venire and the proceedings broke surfaced well into the process, pros- as the for a much-delayed Immediately lunch. trying ecutor was explain that the strike break, after the lunch judge the trial re- of that was not race-based. In mak- turned to the issue of challenges Batson ing explanation, that prosecutor for the with respect to the peremptory strike of first time stated that the reason for the At that point, Juror 333. defense counsel strike was that he believed Juror 333 clearly made arguments looked like alternative for the people “those who follow Louis challenge Farrakhan who of the prosecutor’s peremptory could not be fair to the 1) Government.” immediately This was fol- strike of prosecutor’s Juror 333: lowed defense objection counsel’s to the explanation striking for Juror 333 on the court that prosecutor] “He [the could have (bow tie, appearance basis of his closely him, asked Your Honor.”3 shirt) cropped hair pretex- and white tual because Juror who had not been court then ruled that pros- struck, cropped also had close hair and race-based, ecutor’s strikes were not not- 2) however, tie, ing, wore a bow and that the race-neutral prosecutor’s race- explanation neutral striking given by prosecutor for reason striking Juror 333 for facts, was not “based on Muslim, observations Juror that he was a was itself 3. The putting defense counsel’s I would not want to risk that kind statements follow: prejudice jury on the when the Govern- year We [Prosecutor] have a 25 bring old still ment has the case. panel on the in seat number Michael [Defense counsel] He could have asked Justice, who is Juror Number 333 and he him, Your Honor. very prominent neighborhood lives in a very Rayful I know well from the Edmonds expressed sympathy The trial court situation in the Trinidad area. prosecutor's "gut feeling,” stating ”[t]his But, given I also note appear- personally Court is aware that there have ances, the bow tie and the white shirt and been several trials in this Court where hair, closely cropped that while I have hung there have been to 1 Jurors for the no indication on the record if there is very prosecu- same reason mentioned [the indication on the record and if there is fact, a matter tor]. As this Court tried 1 of some mention of his affiliation with those those cases.” people who follow Louis Farrakhan who could be fair to the Government. that, joined improper.5 point, suggesting Other defense counsel one further with Islam, respect discrimination on the ba- objection, emphasizing impermissi- religion sis of also amounted to race dis- and, ble basis for strike6 record, crimination.7 I con- Based joining 5.Defense counsel stated: Court’s comment about that and prosecutor] [the there is some [paramount] [T]he issue is that the Court [sic, suggestion people of the Muslim reli- 333] concerned about Juror 33 prosecutor] give gion impartial. because could not cannot be fair [the Honor, perceived Iwhat believe that the as a Accordingly, Court Your I ask that would Honor, proper explanation pros- accepted [the the whole stricken. Your I gut ecutor’s] reaction. joined was shocked that the in that Court prosecutor] [The indicated to Court comment. gentleman cropped because the had short added.) (Emphasis tie, hair and a bow there is some suggestion that he is a Muslim. Another defense counsel stated: gut He that was his reaction stated prosecutor] If concerns [the some accepted the Court it and I believe anybody about that was inherent something Court indicated to the effect of Farrakhan, teachings prosecu- [the of Louis yes, cropped he had close and he did hair at the tor] de[lved] could have into that juries— a that have bow tie and we had of time the voir dire. cases before which ended in 11 to basi- striking person point I think a at this that cally hung jury. a may because a that he be a follow- of belief Honor, Your Juror who is 094 Number 1 reprehensible er of is for Louis Farrakhan cropped has hair. has a bow close He tie. counsel] the reasons that other defense [the yesterday.... He had tie a bow on espoused during the Court. Honor, his comments to prosecu- Your that [the undercuts concern, a BuL if was a we had that argument. saying He is that he tor’s] struck process prosecutor] and could [the the Juror he is and this because Muslim first all, improper. improper It raised then and we could have that's is and I the issue of was also when condoned to shocked the Court discussed it and if the court felt inclined statement, strike, that Your grant Honor. a prosecutor's] request [the suggesting people What the court is is that it could at have been done that time. religion prac- or the Muslim Muslim Bringing up at hour as it now the 11th of tice impartial.... and cannot be reaction, gut Court we deemed it to a fair object certainly any suggestion I would context think that that does not fall into the person belongs that a certain reli- who to a gut physical aof reaction based on the gious group since the First Amendment and description think Juror No.l.... So I expression and the freedom of freedom of argument rings his hollow. association, religion, here that is freedom of they part suggestion a some that cannot be 7. A third defense counsel added: jwy process. this point have a I would out to the Court that I that, my practic- addition to client is litiga- long history doing discrimination ing dur- and on occasions Muslim numerous when I hear tion I know discrimination matters, has, ing pretrial he in worfn] fact prosecutor] it. When I heard what [the cap.... saying, saying was I heard it. He first is Honor, regrettably, Your ask I would that segment Black all that entire an panel be stricken because I think that population religious views because of their gave explanation prosecutor] that [the are presumes what views he be their improper. to 333 as jurors Honor, worthy not to be in America. prosecutor] simply ... Your [the Secondly, saying pre- that because he he young, he Black struck him because was part person sumes a to be a Black age appellants] and I [the male similar in segment, worthy juror. that he is not to be rejected prosecu- explanation by [the Honor, that we have Your I don't think proper one tor] I don’t think that it's a language long time light heard this kind of in in other with bow tie [the of 094 we have come or at least in America where cropped also Your Hon- hair] close or, pretend let's point we to that regrettably, object I have to the to the where elude that objected defense counsel religion all members of a should be exclud- “ the strike was impermissible as soon as ‘suspect’ ‘equal ed is under the protec- prosecutor’s attempt give a race- tion’ provisions of the Constitution.” Id. explanation neutral for his strike revealed Ross, (citing Ristaino a religious basis. objections As these were 596 n. L.Ed.2d 258 sworn, made before the they (1976)). case, Defense counsel in this timely. were See Tursio v. United presciently, rather used the term Batson 1209 (D.C.1993). “generically,” today, much as we do as Second, encompassing types impermissi- various objections defense counsel’s were of such nature ble specificity pro- as to discrimination selection put cess, squarely issue before the trial referring solely to race.8 No court. Although, at the time of trial majority doubt the is correct that defense case, Supreme neither the Court nor this counsel present did not the trial court with court had beyond extended Batson race- “finely argument honed” presented on based challenges, given we had in- strong cases, appeal. That is true in most as few supporting dications that proposition. In a luxury counsel have the of time and case which the requested defendant had reflection, in the heat of an ongoing pre- that all Catholics be stricken from jury trial proceeding, ap- is available on ground fairly no Catholic could peal. Defense counsel were reacting on judge the credibility of the priests who spot unfolding ex- crime, were the victims of the we held that planations. difficult, however, It would be prospective juror

[a] who is otherwise intensity to miss the objec- of counsel’s competent to serve jury may on a not be tions, which not castigated prose- disqualified merely religious because of cutor, unusual, but took the and perhaps belief or status. The mere potentiality risky, additional step expressing “shock” for bias based religious on affiliation at the trial court’s view of law on the cannot justify the elimination pro- of a subject religion-based peremptory spective juror. Only the demonstration Moreover, strikes. the legal basis for of an actual may provide bias such a challenges broadly counsel’s presented was justification. objections to the trial court. Counsel’s Coleman v. United were in framed terms of references to the (D.C.1977) (citation omitted). We “Muslim religion practice,” also or Muslim adopted the same argument that appellant “people of the religion” Muslim “be- and case, makes in this that the position that longfing] religious to a certain group,” see But, "politically added.) be (Emphasis as we correct” call it. pre[t]ense] there is not even going a on 8. As one defense counsel stated: here. hum, up Honor, Wesit say in this Court and we that primarily Your the Batson issue belongs suspect man looks like he a young to cate- here is Black men and the Govern- gory having without even discriminating against established that the ment is race and sex suspect category enough in and age prohibited. be all of which are There of itself jury duty. exclude someone types are all of discrimination that I think from anything I have never Honor, say heard like that. Your Batson would should be allowed appall anybody it although should who listens Batson dealt with race and I think join to it and I have to defense [other that there is an issue of race here because just counsel’s] comments that I not un- people do of the number of Black that way derstand how the Court can affirm that Government struck from the 19 versus thinking. 5 white. exception if I supra argued with indicat- explanation, and counsel that note explanation religious prosecutor’s] [the “because of their views ed strike was views,” supra presume[d] appropriate ... ... see was demonstrated justifiable striking for the challenges note 7. cast to the reason Counsel their his chal- religion-based jurors peremptory strike in of its involv- those with terms ing lenges. a clear indication “suspect” category, basis for their equal protection 333], I indicated [no. With supra They made

claim. note 7. also justification given prosecu- [the objections clear that their were based However, acceptable. less than tor] was supra on part the First Amendment. See strikes, I am allowing [the out Further, note 5. counsel at several times prosecutor] gut feeling have distinguished dis- impermissible between though justification Even strike. religious crimination based on affiliation respect than with acceptable was less justify could religious beliefs that it. juror, permitting that one I am strike, 5, 6, supra noting & gender age.” of Id. The v. on basis majority The relies Baxter United and the 9. on (D.C.1994), they prop- "[e]xcept for A.2d 714 the as 640 concluded that insofar apprised be of osition that the trial court must being his in might be viewed as subsumed "precise legal argument upon which ob- the peers’ new ‘jury argument, Baxter’s of his jections juror based.” See ante strikes are contentions, namely, the Constitution slightly presented at 18. Baxter different proscribe discrimination certain statutes Baxter the same claims issue—whether made prosecutor’s exer- age the on or sex in based appeal did trial on as he court. challenges, not made peremptory were cise of Baxter, appellant the court noted say appellants judge.” To trial Id. the "substantially position revised the which he presented the may case not have in this dropped altogether took in trial court ... the they argument polished an as court as trial in the selec- his claim that race was a factor however, as appeal, is the same have on jury,” and his claim tion of his "abandoned challenge prose- they the saying that did not peers’ by his that he was denied a of per- explanation his religion-based cutor’s discriminatory of exclusion from 333, ” the record emptory strike Juror which ‘young A.2d at The black males.’ 640 they shows did. that, appeal, on now court noted "Baxter contends, instead, that was denied his con- he analysis trial join majority’s of the 10. I statutory rights because stitutional challenge. ruling on the race-based court’s prosecutor discriminated in exercise of challenges, on the basis of both

609 planation Alabama, 127, 134, was “less than acceptable” must 511 114 U.S. S.Ct. challenge (1994). referred to the 1419, 128 L.Ed.2d 89 As the Court impermissibly strike was based on reli- J.E.B., held gious decided, affiliation. The trial court what, now, Today we reaffirm should nonetheless, to let one out thirty strikes be axiomatic: Intentional discrimination go without scrutiny further though “[e]ven on the gender by basis of state actors justification acceptable was less than Clause, Equal violates the Protection respect juror.”11 that one On this where, here, particularly as the discrimi- record, therefore, I conclude that the ob- nation ratify perpetuate serves to jection to a religion-based peremptory invidious, archaic, and overbroad stereo- presented strike to and decided types about the relative abilities of men court, and is reviewable on the merits and women. appeal. 130-131, 114 Id. at S.Ct. 1419. The Peremptonj Strike Based on Pre- reasoning applies The same to exclusion Religious sumed is Affiliation Beliefs religious based on affiliation. See United Unconstitutional Somerstein, 592, States v. F.Supp. 959 595 The Equal Protection Clause of the (E.D.N.Y.1997) (.Batson applies religious (as Fourteenth Amendment well as discrimination but “there must be deter equal protection doctrine embodied in the mination as to religion whether the of the Due Process Clause of the Fifth Amend- juror is relevant to the issues of the case ment) prohibits the state from discriminat- ... only jurors if religion is ing on classifications, the basis of suspect issue, directly relevant to the crimes at can affiliation, such religious which pro- proper.”); such a be People [strike] tected by the First Plyl- Amendment. See Martin, 378, Cal.App.4th Cal.Rptr.2d Doe, 202, 216-17, er v. 457 U.S. 102 S.Ct. (1998) (Batson 147, 151 extends to reli 2382, (1982); 72 L.Ed.2d 786 Employment discrimination, gious “peremptory but a

Div., Dep’t Human Oregon Res. challenge juror on the basis of the Smith, 872, 3, 494 U.S. 886 n. 110 S.Ct. juror’s personal relevant values is not im (1990). 108 L.Ed.2d 876 In Batson proper though may even those views and its progeny, Supreme Court has juror’s beliefs.”); religious founded recognized that juror exclusion of a Hodge, Connecticut v. 248 Conn. race, classification, based on a suspect also (1999) (peremptory chal equal offends the protection rights of the lenges based on affiliation are excluded “public undermines unconstitutional), cert. confidence the fairness system of our (1999); 145 L.Ed.2d 319 Batson, justice.” Eason, see also North Carolina v. Supreme ex- Court has (1994) 730, 917, (per N.C. 445 S.E.2d 923 tended Batson’s reasoning to exclusion of jurors sex, emptory legitimate prose strike the on when based which is accorded beliefs, cutor how “heightened” inquired religious not scrutiny, somewhat less than affiliation, scrutiny ability the affect to follow required might for exclusion based law); suspect on a Stafford, classification. See J.E.B. v. v. 136 United States F.3d pass impermissible 11. If the trial court’s on the strike. See Little v. "less than United (D.C.1992) acceptable” explanation (noting did refer the not to 885 religion-based objection only it can have re- that "the exclusion of even one ... member of objection. equal ferred to the race-based In either the venire for racial reasons violates the case, clause”). judge may protection the trial allow even one not 610 (7th Cir.1998) Div., (noting Employment Dep’t the Human 1114 neces See of sity religious “to affilia distinguish among Oregon, Res. at 886 n. 110 494 U.S. of tenets,

tion, general spe a and a religion’s S.Ct. 1595. belief”). cific But see religious Casarez case, in Particularly pros- this where the State, (Tex.Crim.App. 492 913 S.W.2d striking explanations for Juror 333 ecutor’s 1995) (refusing extend Batson to reli two clas- slipped suspect and slid between gious affiliation all members of “[b]ecause sifications, where religion, race and and faith group the share the same defini on tion, religion-based discrimination based unjust it not to attribute is beliefs them]”); the all in of neces- membership [of characteristic of faith to the Nation Islam Davis, (Minn. well, State N.W.2d the as trial court sarily implied race 1993) (refusing to Batson reli extend alert to the particularly should have been gious religious bigotry affiliation “because potential for unconstitutional discrimina- in peremptory challenge the use of the is J.E.B., jury tion in selection. Cf. historically prevalent, flagrant, not as or (“Failing provide at process in the as ingrained selection jurors against gender protection the same race”). is could discrimination as race discrimination J.E.B., As in in record this case Batson Be- purpose of itself. frustrate excluded, shows that for Juror not cat- gender overlapping and race are cause disqualified substantive reason as egories, gender pretext can be used a him jury, entirely from the but based discrimination.”). At least one racial assump- court’s in case defendants this that, tion because of haircut (cropped) 5; Black, supra also See note but Muslim. (white dress shirt mode of and bow 85-86, Batson, 476 at cf. tie), the must be Mus- young black man (stating right that defendant’s Farrakhan, lim and a follower of Louis equal protection purposeful is violated who, in prosecutor, the words “could in the selection of racial discrimination government.” pros- not be fair to the The venire). challenges prosecu- acknowledged ecutor that there was “no strenuously timely tor’s were strike on the record” of Juror 333’s indication counsel, pressed making clear by defense affiliation, less his much beliefs. that, if left the strike could unexplored, supra judgment note 3. Such about ensuing question call into trial. person’s nothing beliefs based on more Cf. Baxter, (reiterating 717 n. 3 superficial supposition than drawn from kind, “the in cases importance, is the kind of rank characteristics discrimi- Supreme as alerting judge nation that Court said to the issue as soon it is “axiomatic” violates J.E.B. Consti- emerges, so that a mean- pattern allegedly guarantee equal protection tution’s be- made.”). ingful can record cause it fails relevant constitutional a con- always troubling It to overturn “whether on the standard of discrimination a crime as serious viction that results from gender basis of selection substan- here, a significant at issue after the one tially legitimate inter- furthers State’s judicial, prosecutorial investment impartial fair achieving est trial.” proper resources. The course defense J.E.B., 114 S.Ct. 1419. in the trial squarely address issue “suspect” the case of classifications such court, juror to by questioning potential higher: religion, the standard is even first, establish, is a whether he member “compelling state interest.” must show Islam, and, so, bership if in the Nation of reversal is presumed group, required. they whether his beliefs are such that dis-

qualify serving him from on this particular done,

jury. prima As this was not and a

facie case has been made that Juror 333 presumed

was excluded based on his mem- notes the notes (1998); States, Nguyen United v. 114 F.3d of the firearms examiner were disclosed belat- Cir.1997) (8th (no edly, appellants' Brady the trial court afforded coun- violation opportunity effectively sel the to re-cross alleged exculpatory the where material "came See, Norris, e.g., examiner with the notes. from the books and records of [defendant's] supra, (finding Brady 146 F.3d at 334-35 no company”). own violation where defense counsel received use). criminologists' for effective tests in time credibility the on other prosecutor’s cross- feet eventually Brady use evidence to 421-22, witnesses, requi the matters. 514 U.S. at government examine prosecutor’s credibility is not prejudice lacking, is and we will not 1555. The site ruling.19 Brady Ede Without a demonstration disturb the trial court’s evidence. how late evidence 972 of the disclosure the len United (D.C.1993) (“[T]he case, con- judge prejudiced prosecutor’s on their the trial the the sistently late disclosures cannot form position scene. He was in a far better atmospherics than are to of basis reversal. we assess whether, given case and determine 2. Nondisclosure occurred, all that had defense was [the] any delay in appreciably prejudiced by point also to other situations Appellants ....”); also, [Brady] e.g., disclosure see alleged Brady, Giglio, where and Jencks Scarborough, 128 F.3d during United States material was not disclosed all Cir.1997) (“As (10th long as deeply need not too into trial. We delve made it is ultimate disclosure is before too or not the various discussion of whether use of ] late for the make un- have been disclosed materials should defendant evidence, Due Process Brady appel- benefits or Giglio der either because omitted). satisfied.”) (internal quotations rea- lants failed to demonstrate the a different outcome probability sonable argue nevertheless Appellants flowing from evidence. effect of such “last the cumulative First, minute” the credi appellants disclosures undermined claim that This, they argue, bility prosecutor. required produce of the mate government was indirectly impinged upon prosecutor’s relating government’s rial favorable were not assurances that certain witnesses Kalvin Bears ex treatment witness testimony.20 After a bench parties agreements change to extensive for his issue, the gave testi on the trial government, who in turn false conference Appellants, Giglio appellants’ how denied the motion mony against appellants. counsel, ever, request hold as well argument by relying misstate their Bears’ conviction for Brady hearing as to whether alleged on the cumulative effect a direct result credibili utterance was dismissed as violations had clear, prosecutor’s intervention. Notwith ty. Kyles As makes the relevant denial, standing effect of court’s inquiry is whether the cumulative

Notes

notes Brown Unit agreement); “[[Imposition [a lesser] note that se evidence (D.C.1991) not, itself, ed does establish sentence (“It us, case as in incumbent in this preferential upon had been promised [a witness] Felder, supra, proscription 595 A.2d at 977 n. We noted in Felder applies misleading evidence as well. See

see notes trial clear statement The court’s would proper procedure be to justification striking Juror juror’s inquire religious about the affilia- acceptable” “less than must and, his importantly, tion more of the race the context understood in- they ascertain are beliefs to whether made defense religion-based challenges compatible service.9 ruled definitely counsel. trial ruling Finally, the trial court’s shows Hav- not race-based.10 that the strike was judge aware counsel’s judge that there was ing trial satisfied race. objections Upon strike, were not limited to peremptory no animus racial hearing counsel’s race the various defense had no need for prosecutor would religion-based challenges prose- to the it the strike unless explanation further strikes, cutor’s the trial court another there was was understood that ruled: different than challenge, for the basis Therefore, one With about which based on race. respect strikes prosecutor’s ex- statement that the prosecutor] give was asked court’s [the

Case Details

Case Name: Card v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Jun 28, 2001

Citation: 776 A.2d 581

Docket Number: 94-CF-754, 94-CF-801, 94-CF-1147

Court Abbreviation: D.C.