Jefferson v. United States

JEFFERSON, Appellant, David STATES, Appellee.

UNITED

No. 92-CF-309. Appeals.

District of Columbia Court

Argued April 1993. Aug.

Decided Sechler, DC,

Philip Washington, ap- A. court, pointed by appellant. for White, Atty., Peter H. Asst. U.S. with Jay Stephens, Atty. whom B. U.S. at the filed, time the brief was R. Fish- John Black, Webb, er, and Renee Y. Thomas C. DC, Attys., Washington, Asst. were on brief, appellee. ROGERS, Judge, Before Chief KING, Judges. TERRY and Associate TERRY, Judge: Associate Appellant Jefferson was convicted of dis entrap tributing cocaine.1 He raised an defense, asserting police ment appeal “coerced him to do this act.” On he per contends that the emptory challenges discriminatory in a manner, in violation of v. Ken Batson tucky, 476 U.S. (1986), and that the evidence permit to find

was insufficient predisposed that he was to distribute drugs. Although agree proce we employed by dure the trial court in consid ering the claim was not what been, appel should have we conclude that showing lant failed to make a challenge of a Batson violation. His sufficiency wholly of the evidence is with Accordingly, out merit. we affirm the con viction. 541(a)(1) (1988). § D.C.Code 33— trying you were to make the motion that

I in the court? Jury A. Selection Yes, sir. Thank Counsel]: [Defense During dire, after several venire the voir All the strikes Honor. Yes. you, Your cause, counsel members were excused for except one strike of of the Government chal- began to exercise their people 661896 were strikes Juror lenges. counsel raised an When defense I race Jefferson. was the same as Mr. use of its objection government’s pattern based on unable to determine strikes, following discus- anything other than race for those occurred at the bench: sion were strikes since most of those strikes Honor, I Your Counsel]: [Defense during the people who commented object to to the Government’s want objecting And I to process. voir dire Every has someone strike. strike been [they] appeared to those strikes because of the same race as Mr. Jefferson. be based on race. tion. cutor] than racial for the [referring [Prosecutor]: [Defense Counsel]: ^[******] It hasn’t even appears to a juror That’s not spoken, my strikes. be struck no This pattern true. gentleman recollec- prose- other strikes were Government keep how Government The Court: All [Prosecutor]: many a count of how were white have to would note not of race First, right. many say? or how Your [sic]. What that all of its were black Honor, many were does the I didn’t or because, frankly, that of whatever race except All for the one the strikes I my did strikes. wasn’t basis gentleman experimented that has with note, however, himself that counsel same, drugs people. are of the are black jurors. struck all white The You think that she’s dis- Court: criminating against Mr.— I’d like to correct [Defense Counsel]: the record. I That’s what was [Defense Counsel]: Honor, alleging, yes. Your a minute. The Court: Just Well, The I’m sure she Court: he raised his is- After [PROSECUTOR]: intentionally. wouldn’t do that But I note that the sue. would fact Well, intentionally Counsel]: [Defense necessarily they speak doesn’t didn’t otherwise, gets or he’s still the one that person be- you struck that mean harmed it. a number of cause of race. There’s Honor, I Your looked at things, way person that a [Prosecutor]: my for the record that all of way person might have you, the that a race, have not been of the same I defendant, looking at which was kept would also note that all of counsel’s my for some of strikes. certainly a basis And strikes have been of the same race. friendly Smiling, appearing to be too issue, if that would I would raise it defendant, looking hard too with He has all white as to counsel. me. jurors. lawyers that when I most know think may The continue their Court: Counsel jury, just very subtle you’re picking a it’s strikes. the law- are transmitted to things that point, jury, conference ended at this picking bench yers in the course of and the voir dire resumed. just I would like to state of me race the basis record that wasn’t completed jury After selection had been striking these individuals. lunch, and the had left for court returned to the issue: Well, I don’t have Okay. The Court: anyway, right now Now, right. to resolve that issue what All The Court: may resolve got so you put again want on the record but we’ve

the— everything. again cash, You pre- raise it at a ered which included the $200 you later date if want to. recorded bill.3 $20 presented no evidence. The issue defense was not discussed further. however, closing argument, defense B. The Trial jury: counsel said to the you find some evidence that Mr. Jef- [I]f Mario Etienne Rap- was member of the enticed, ferson was was induced to com- Deployment id Metropolitan Unit of the crime, words, mit this in other he didn’t July 11, 1991, Police. He testified that on mind, by have it on his induced was he assigned was to the 2500 block of Pom- it, then, police you the to if make do Road, S.E., eroy prepared engage to in an finding, you beyond have to find rea- purchase undercover He narcotics. predisposed sonable doubt that he wasn’t up walked to people playing some basket- crime, to except commit this for what the anyone ball and asked if “working.” police did. ie., selling cocaine. One of the basketball players go up charge told him “to The court included in parking the its lot,” but entrapment, when Etienne instruction on asked someone in to which nei- parking anyone party objected. lot whether ther was work- ing, “that man told no.” After leav- [him] II ing lot, parking however, appel- he saw lant Jefferson and asked him “if he knew An assertion counsel that anyone working.” that was Jefferson di- government acting is in racially discrimi rected lot, the officer parking back to the natory very manner is serious and demands but when Etienne said he go would not possible scrutiny by closest both the there,2 replied Jefferson that he go agree court and this court. We to the lot himself “get one to come the trial court in this case should have you.” down here and serve Jefferson then examined defense counsel’s claim much approached man, another later identified as carefully. record, more present On the Barry Johnson, who, Jefferson, along with however, we conclude that did not counsel disappeared out of the sight. officer’s Mo- showing make a of a Batson returned, ments later the two and Jeffer- violation.4 son handed ziplock Officer Etienne bag Relying on this court’s decision in Nelson of cocaine. Etienne in exchange gave Jef- States, (D.C.1991), v. United 601 A.2d 582 ferson a bill whose serial $20 he number asserts that defense coun- had previously recorded, and Jefferson sel “did not make a record on which his turn money handed the to Johnson. Batson claim can be considered.” In Nel- Coles, Christopher

Officer appellant who was son claimed “that working under cover with Officer Etienne overruling objection court erred in his to standing and was thirty about away feet alleged per- misuse of his cocaine, from him bought when he emptory challenges by striking radi- only black oed a lookout to waiting an arrest team persons.” rejected Id. at 590. We this nearby. Acting broadcast, on that argument ar- for the “fundamental reason rest stopped team two men—Jefferson appeal and that the record on fails to establish Johnson —whom Etienne later identified makeup as the racial of either the venire or the two that were drug involved in the selected, sale. the jury actually and that under Reginald Adams, Officer Co., a member of the Drug Cobb v. Standard 453 A.2d 110 team, arrest searched (D.C.1982), Johnson and recov- responsibility for that fail- Johnson, Conner, 2.Officer Etienne testified on Anthony cross-examination also known as Jefferson, along go he told Jefferson indicted severed, with that he would not to but his case was parking separately. and he was tried “young lot because some of the money ones" there had past. taken his in the very ably represented appeal Jefferson is on by newly appointed counsel. process. I was Nelson, supra, during the dire And appellant.” ure lies voir with ap- to objecting those strikes because thing happened at 590. same to on race. peared be based appellant here: for failed counsel Jefferson makeup the racial of either the establish It “the enough. is true that This was jury actually venire or selected. establishing show- burden primary ing is not onerous and that mistakenly that he Jefferson believes is to common function eliminate most rely solely prose on the fact prosecu- nondiscriminatory reasons her cutor used nine of ten tor’s strikes.” v. United Little persons black from the -to remove (D.C.1992)(cita- States, 613 A.2d He support Batson claim. omitted). met But that burden is not tion effect, asking us, pat “extrapolate mere assertion of a discrimina- counsel's tern of discrimination”5 from the number the tory purpose. The fact that nine of chal of black venire members who were challenges prosecutor’s ten were directed lenged by prosecutor compared with the as is not to persons toward black sufficient the of members chal number white venire even facie. purpose, prima establish such a Maryland lenged. agree We with the As we observed in “Given the com Appeals of Special Court that such limited typical of venire in the District position the chal persons facts—the number of black Columbia, particularly surpris of ‘it is not lenged persons the number versus of white by the ing persons all of the [when] challenged only when the be relevant —can ” 613 A.2d at 886 prosecutor black.’ [are] “knowledge percent- court also has Nelson, supra, 601 at 590- (quoting A.2d age against group given of strikes used a 591). knowledge percentage of also the [and] represented total group that that Jefferson maintains that he estab panel or, more precisely, venire prima lished a facie case when his counsel — percentage group represented that that of her fifth objected prosecutor’s to the use of for prospective jurors actually the called challenge peremptory “because it excluded accepted challenged.” ward to or Bai be male had not a sin a black who answered State, ley supra Md.App. question during At this gle voir dire.” 778; 579 A.2d at see States v. United prosecutor point the had exercised four of (10th Esparsen, 930 F.2d Cir. challenges against black venire mem five (“the 1991) challenges of number court, however, dismissed trial bers. particular of a is members race ‘not told con counsel’s assertion and counsel to negate or sufficient to establish After the tinue their strikes. ” (citations omitted)), de case’ cert. box, again objection raised counsel — -, nied, peremptory chal prosecutor’s use (1992). lenges, govern asserting that nine challenges ten had been ment’s directed Despite prompting court’s to not persons, “most” of whom had black issue, develop a record on this defense during voir anything said dire.6 following: counsel said court, response by listening after to a brief All the except strikes of the Government the de prosecutor, determined that one strike Juror 661896 were strikes making out fense had not its burden met people of the same race as Mr. Jeffer- prima facie case. son. I to pat- was unable determine a anything tern Supreme based on other than Court articulated race In Batson the assessing pri- for those strikes since most of whether a those standards for people not established: were who commented ma facie case has been State, 323, 331, observed, Bailey Md.App. many why cutor there are reasons 579 A.2d 774, 778, struck, 321 Md. particular member (1990). necessarily reasons not revealed such are person say during that or does what does 6. In cases this fact most alone is of little no voir dire. assessing prose- value in a Batson claim. As L.Ed.2d To such a establish (1990).8 first must show that he is member of a it would have been bet- While cognizable group racial ... and that the ter if here in so judge had stated prosecutor has exercised many facie bur- words whether challenges to remove the venire from met, den his conclusion to effect members of the defendant’s race. Sec- proceed can to be inferred from his decision ond, rely defendant is entitled on hearing with the trial after fact, as to which there can be no response to defense counsel’s Batson dispute, con- us, claim. before we cannot On the record practice per- stitute a selection say that such a conclusion amounted mits who are of “those discriminate abuse of discretion. Finally, mind to discriminate.” ... engaged This court in Little a thor- must these defendant show that facts ough of the “relevant circum- discussion other relevant circumstances stances” which trial should consid- raise an inference that determining er in whether a practice used that to exclude veniremen case petit jury from has been established. 613 A.2d at on account of their single race. 885-887. It true that strike “[a] juror of a white can be a to conceal means (citations U.S. at S.Ct. at 1723 (or conceal) attempt pattern a of striking to omitted). The of determination whether a jurors_” black Id. at Neverthe- prima showing facie par- has been made is less, required a “is ‘come defendant to for fact-sensitive, Little, ticularly supra, 613 just ward in facts, with alone’ numbers Supreme A.2d at and the Court has making prima showing although a facie made that judges, clear trial they because the trial court examine statistical dis “experienced are in supervising dire,” voir parities assessing pri- in the as one factor are the who ones “will to if be able decide (emphasis original; ma facie case.” Id. in the prosecu circumstances the concerning omitted). Moreover, citations an inference tor’s use of peremptory challenges creates of likely discrimination will not arise from prima a facie case of discrimination prosecution a mere that showing the jurors.” Batson, black supra, 476 U.S. at all of to peremptory challenges its exclude 97, 106 court, at 1723.7 although This (citing Sangi blacks. Id. United v. States noting “[wjhether that a defendant has sat (6th neto-Miranda, 859 F.2d isfied making prima the burden of a facie Cir.1988)). Little, In where the record with question law,” case is a and thus an respect to the Batson claim much was novo, issue which we decide de has also developed more thoroughly than in case recognized it give that “mi t deference to bar, at held this court that defense counsel both the findings trial court’s of fact and prima had failed to make a facie case. The ruling its ultimate on whether defen (1) facts black and dant that the defendant was prima satisfied facie burden.” Little, six supra, 613 of seven strikes were directed toward (citing A.2d at 885 Bat ); (2) Grandison, persons, per son black that see United States v. several black (4th Cir.1989), F.2d sons were struck who had no answered Supreme findings knowledge 7. The Court has held use of from first-hand and “stem[ ] peremptory challenges "to exclude otherwise observation of the critical events." 885 F.2d at qualified persons petit and unbiased from the particular, op- 146. In the trial "has the jury solely by reason of their race” violates the portunity prosecu- to observe voir dire and the rights jurors’ equal protection excluded to challenges,” tion’s exercise of as laws, may challenge and that the defendant identify prima experience well as "the ‘to a facie by raising rights or her conviction of these ” (citing purposeful case of discrimination.' Id. (the Ohio, parties jurors). third Powers Batson). The court also noted that trial 400, -, 1364, 1370-1371, judge’s finding of intentional discrimination is a (1991). finding largely of fact "which turns ‘on evalua- ” Grandison, supra, ). explained credibility.’ the court that tion oi judge’s such is deference due because all, (3) negating questions ing prima and facie voir dire at case.... close, person white the issue conservation whom Where justify question judicial might struck had answered a did not resources well in- persuade government attorney us that had made a as quiry showing espe- making a Batson violation.9 reasons for a strike ... bar, cially In the case at the record is no since burden in Little, strong rebutting means as case is as the record neither time-consuming. and see no reach a nor we reason to different onerous result.10 (citations at 887-888 internal A.2d omitted). marks quotation imprudent

We think would be per us to formulate a rule for determin se Ill ing whether facie case is estab “there Jefferson asserts that was As we recognized lished. there jury to insufficient evidence for the find concealing pat are various methods of predisposed was to distribute co [he] striking jurors. tern of black prior being approached caine under bright-line easy 886. A rule would be correctly officers.” Jefferson cover As give circumvent and would rise to numer notes, Court, Supreme in its most re allegations prose suspicions ous discussing entrapment cent case de cutor discrimina attempting to conceal fense, has held “the defense of that when defer, tory challenges. elect to Instead we prosecution entrapment is at issue ... Supreme as the Court advised beyond prove must reasonable doubt [a] 106 S.Ct. at 1723 to the disposed to that the defendant commit judge. assessment See United being prior ap criminal act to first Grandison, F.2d States agents.” proached by Government Jacob note, however, 146-147. We that the “fa — States, U.S. -, -, son v. United addressing vored method” of a Batson 1535, 1540, (1992) 174 112 118 L.Ed.2d claim is for trial court to rule at each follow, omitted). (citation It does not how step of the analysis; its failure to ever, argument. supports that his Jacobson “deprives do so this of the benefit of court its factual determinations and the reasons entrapment “centers on The defense supporting holding.” its ultimate United crime, predisposition to commit person’s Joe, 99, (4th Cir.), v. 928 F.2d 103 States conduct.” government’s on the and not — 71, -, 112 U.S. Whoie, U.S.App.D.C. v. 288 States United (1991). por this We close 261, 263, 1481, (1991). F.2d 1483 Once opinion reiterating our tion of what we “induced” government it is shown that the in said Little: engage to in criminal activi prove judges ty, government’s caution trial to make a clear to it is burden [W]e finding predis record of their reasons for or not that the defendant was otherwise Jacobson, finding pri- that a made a posed defendant has to commit the crime. su — -, facie case. pra, ma The trial court should U.S. at 112 S.Ct. underlying government refer on the record to facts or asserts Jefferson either, support- note the absence facts as a matter “to adduce evi- failed of law recognized (prosecutor 9. We a neu- Little that the case was "a S.Ct. at 1724 "must articulate A.2d close one.” 613 at 885. Had the defendant explanation particular case to tral to the related numbers, solely brought on not relied forth tried”); Horsley, 864 F.2d be United v. States facts, might additional decision have been (11th Cir.1989) "vague (prosecutor’s See id. at different. i.e., juror, explanation” striking “I a black reason; just got any particular have I don’t 10. The all but concedes that if the feeling to about insufficient rebut was hint” presented defense had prosecutor's showing of discrimina- defendant’s tion). general about her use disclaimer comment here tit-for-tat certainly almost ju- all white that defense "struck counsel had government’s have been insufficient to meet the particularly rors” was irrelevant. burden. See governmental ac- creative [0]nly where support dence to verdict [he] in an criminal notion tivity independent of the Gov instills predisposed, may the individual en- innocent beyond a reasonable otherwise ernment’s acts and — law_” lie. A defen- properly defense doubt, trapment U.S. to violate be more entrapment must considering claiming at -, at 1543. In dant 112 S.Ct. subject evidence, fact that the we as than unaware argument, this we view arrest; he must must, activity lead to light in the most favorable will when criminal intent wholly without government. E.g., Nelson v. United States, police in the commission joins A.2d at 593 he supra, 601 cases). “only where a crime. Reversal is warranted reason upon which a there is no evidence States, A.2d v. United Williams guilt,” infer Patterson mind could able added); (D.C.1975)(emphasis see Unit (D.C. States, A.2d United Russell, U.S. ed States 1984) omitted), case (citation which this 1637, 1644-45, 36 L.Ed.2d 93 S.Ct. only if means that reversal is warranted (1973). question it is the evidence here On there is no evidence that Jefferson was even the trial court should able whether predisposed. given entrapment instruction have antici- Supreme Court in Jacobson States, 485 Mathews v. United all. See very presented in the pated scenario 58, 66, 99 L.Ed.2d U.S. instant case: (1988) (“evidence that Government opportunity or agents merely afforded an agent deployed stop the traffic

[A]n of the crime for the commission illegal drugs may opportunity offer the facilities and, such an instruc buy drugs, if offer is to warrant or sell insufficient [is] States, tion”); accepted, spot make an arrest on the Minor v. United (D.C.1993). If this was typical later. such a case ... 1187-1188 defense, error, however, entrapment it benefited defense is of little use be- of it. complain now ready cause the commission of the crimi- and Jefferson cannot ample evidence amply defen- there was nal act demonstrates the We hold reasonably find jury could predisposition. dant’s from which the predisposed partici — that Jefferson at -, (citation S.Ct. at 1541 Eti- of cocaine to Officer pate in the sale omitted). The in this case shows evidence enne. that Jefferson did not hesitate to assist obtaining drugs, Etienne in Officer is therefore Jefferson’s conviction readily opportunity seized the to do so. Affirmed. Etienne near When encountered Jefferson parking the lot and asked him “if he knew ROGERS, dissenting: Judge, Chief i.e., anyone working,” selling that was immediately responded by drugs, Jefferson 79, 106 Kentucky, 476 U.S. In Batson group men in referring Etienne to the (1986), the Su- Etienne declined to parking the lot. When racially dis- made clear that preme Court them, “get approach Jefferson offered to prohib- strikes are criminatory peremptory to come down here and serve one First, [of them] a defen- several reasons. ited for word, promptly went you.” True to his he Equal Protec- right, under the dant has a brought Barry parking lot and back Amendment, the Fourteenth tion Clause of Johnson, together com- who with Jefferson by non-dis- jury tried a selected to be pleted language the sale. In the is from a venire which criminatory means Jacobson, “ready Supreme such Court Kentucky, supra, fairly chosen. Batson v. dem- amply of the criminal act commission at 1717-18. at 106 S.Ct. predisposition.” onstrates defendant’s Second, discriminatory a strike violates rights individual equal protection struck, unfairly implies juror and many years ago rejecting who was We said juror competent not to serve. entrapment: that the was claim similar sug- Thus, did not 1718; Supreme Court Little v. Unit Id. at 106 S.Ct. could facie case (D.C.1992) gest, imply, or that States, 613 A.2d ed or math- by a statistical 400, -, only established Ohio, (citing Powers v. has likewise showing. This court 1364, 1370, 411 ematical 113 L.Ed.2d establishing clear that (1991)). standing made has The defendant game.” strictly a numbers case “is not on behalf of equal protection raise an claim Rather, Little, supra, 613 A.2d at juror. supra, 613 A.2d the excluded of the defendant’s depending on the nature Third, discriminatory “un at 884. claim, showing pri- requirements for in the fairness of public dermine confidence I, vary. Part facie case supra, ma system justice.” our infra. 87, 106 at 1718. States, 601 A.2d 582 Nelson United (D.C.1991), majority concludes which prima facie case of To demonstrate a appeal, instant essentially dispositive discrimination, Court instructed Batson opinion the defendant’s majority see that: government had claim that “the sole was that he is the defendant first must show challenges to strike peremptory cognizable group racial a member of a that the persons” so [B]lack prosecutor has exercised and that the ... peers. 601 representative not of his challenges to remove from that holding in Nelson means at 590. The members of the defendant’s the venire government has a mere assertion Second, is entitled race. the defendant persons is alone not nor- only Black rely fact on the ... mally to establish sufficient jury selection challenges constitute a claim, only support- if the defendant’s and permits “those to discrimi- practice that resulting jury ing contention is a mind to discriminate.” nate who are of composed, the de- disproportionately must show Finally, composition of fendant must show the that these facts and other relevant In other jury. at 590. venire or See id. raise an inference circumstances words, appel- provide must a defendant practice used that to ex- permit record to late court with a sufficient pet- the venire from the clude [members] his or her claim. See the court to evaluate on account of their race.... Co., 453 Drug v. Standard id. Cobb all trial court should consider [T]he (D.C.1982)). It was Nelson A.2d 110 example, For relevant circumstances. on the emphasis and reliance defendant’s might give “pattern” of discrimination made jury that composition final discrimination. rise to an inference of jury’s venire’s racial statistics about questions Similarly, mandatory in that case.1 See composition during examination voir dire statements id. exercising [her or] contrast, rely sole- By appellant does may an inference of support or refute government’s nine of the ly on the fact that examples discriminatory purpose. These were directed peremptory strikes ten merely are illustrative. Instead, to those he refers against Blacks. indicia of 96-97, 106 points to other numbers and also supra, 476 U.S. at S.Ct. strikes, (citation omitted) discriminatory peremptory use of (emphasis add at 1722-23 by struck noting of the Blacks ed). that most Brown, States, supra, Like way. 627 A.2d at 505. See decision in Brown v. United 1. The recent Nelson, (D.C.1993), supra, Nelson, only con- supra, 627 A.2d 499 like that when the Brown means challenged compo- a defendant who "the cerned sition position points as to which the defendant circumstance showing making jury,” racial com- thus the is the racial com- racial discrimination jury the venire an almost or present jury, position the defendant must necessary indispensable part for of the record appellate that enables court with a record the review; apparently, appellate the defendant in informa- appellate court to have sufficient the point that failed to circumstances Brown composi- jury’s venire's racial tion about the prosecutor per- had exercised showed that the emptory claim. to evaluate the defendant’s tion discriminatory challenges racially in a showing dispos- government the no voir dire tence on a numerical answered questions, only appeal.2 the venire itive of this that mem- white by government ber the did struck answer any findings The did not make judge trial prosecutor such a the question, and that to the Batson response chal- ruling or a in vague only offered for her strikes reasons Little, supra, 613 A.2d See at lenge. those commented on the race of (trial judges make “clear record” of should by government. the the Unlike defendant finding finding prima a or not reasons for Nelson, appellant in provided record evi- Batson, supra, case); facie cf. dence supporting of these circumstances. States United 1722-23; at Moreover, the record as barren is not Gordon, v. (11th 817 F.2d Cir. composition information about the racial part grounds, vacated in on other 1987), majority opinion the venire and as the dis (11th Cir.1988), F.2d 1312 II, missed, suggest. tend Part 487 U.S. infra. Nelson made addition, In the defendant (1988). judge The did not de juror’s rights no claim a that constitutional termine whether the defense had estab appellant had been violated while makes prima prosecu- lished a facie case that government both a claim broad that tor her peremptory had exercised chal- to remove racially discriminatory manner, lenges in a appellant’s jury Blacks from and a narrow- prosecutor provided nor whether had er Rather, claim that violated indi- explanations. despite race neutral jurors’ vidual Black rights by timely objections constitutional coun- defense striking sel, from they them because judge proceeded to trial without Hence, were Consequently, conducting inquiry.3 Black. Nelson’s insis- further State, due, Bailey Md.App. prosecutor passed 579 A.2d ence is never (1990), majority, majority opportunity cited see over an to make a chal- opinion lenge, though only eligible similarly is similar to Nelson and even one during fails to in the determine the result the instant member remained courtroom case. Therefore, Bailey, last round of does not strikes. Little claimed trial appellant pri- judge compelled present prima determine that failed to to find facie case showing "solely ma facie in the instant case. on the that mathematical basis seven out prosecutor’s peremptory challenges of ten of the judge’s majority 3. The prospective jurors." were concludes that the trial directed black Bai ruling appellant presented ley, supra, (emphasis added). on whether had A.2d at 777 prima facie “can be his deci- Maryland case inferred from The court was aware of the racial hearing proceed sion to with the composition trial after jury. of the defendant’s Id. at 775. prosecutor's response to Bat- “[tjhere are, defense counsel’s Bailey The court further noted that opinion major- course, Majority son claim.” at 17. ways demonstrating other ity judge presumably means that the im- racially discriminatory case of use of plicitly appellant presented found that had not peremptory challenges. areWe concerned However, judge de- here, however, facie case. impact probative with the stating any ruling, explicitly clined to that make (second standing of statistics alone.” at 778 right “I don’t now.... have to resolve that issue added). State, emphasis Eiland 92 Md. Cf. you You at a want to.” raise it later date if App. (1992) (using "admitted Indeed, might argued when the even be ly imprecise gender composi denominator” of judge explana trial tion, asked for jury pool tion of after remained judge finding implicitly made a cause, though even no information available appellant presented had gender "actually about of those called to be making which case the erred in no find challenged”). accepted or ings failing and in to rule on the ultimate issue majority’s reliance on Batson, supra, discrimination. See 880, unpersuasive. majority A.2d is also See 98, (after gives prosecutor at reason, 106 at 1724 Little, opinion at 17-18. In the court deferred "duty judge trial has to determine if the findings emphasized to the trial court’s and purposeful discrimi defendant has established prosecutor potential gave up oppor- 50, nation”); State, fact that the Stanley v. 313 542 A.2d Md. by passing perempto- 1267, (when tunities to discriminate on (1988) judge prose trial 1283 asked times; so, ry challenges “[tjhis four even the court explanation, at cutor for least an 887, prima described Little as a Id. at implied finding case”) “close” case. the existence facie of of a case, judge cases); instant (citing Bailey, supra 885. In the the trial did not 84 Md. cf. 2, any findings appellant App. (quoting make or rule on whether at 579 A.2d at 330 note 777 event, presented prima 1283). Stanley, had a supra, facie so no defer- A.2d at 542 22 prima facie case. a See had established discretion. See Johnson

judge abused his (a “close” Little, supra, 613 A.2d at 885 354, (D.C. States, A.2d 363 398 v. United seven government’s where six case 1979) choice in a situ (“[fjailure to exercise aimed at Black strikes were dis is an abuse of calling for choice ation trial, defendant’s persons at Black venire cretion”). persons an Black venire some of those record,4 particular Upon a review only white questions, and the swered no facially sus light prosecutor’s ly of ques a person struck had answered comments, prima facie the lack of pect proportion of tion; larger jury contained can this court case is not so clear venire); supra Stanley, than the whites find trial court in the absence of affirm 1277, 3, at 542 A.2d Md. at 57 note 313 Batson, at 96- supra, 476 U.S. ings. See cited); majority (and also cases see 1278-79 deciding 97, (“[i]n wheth 106 S.Ct. at 1723 least the court n. 10. At opinion at 18 requisite has made er the defendant judge to the trial the case should remand consider all showing, the trial court should Stanley, ruling; su findings and a for cf. circumstances”; expressing Court relevant 3, A.2d at 1279- note 542 pra 313 Md. at 57 judges ... will “confidence that at 1285 (limited remand); 542 A.2d id. 80 cre if the circumstances ... able to decide “simply let the matter (fact case”); supra Bailey, prima facie ate[] remand). See limited drop” weighs against 2, A.2d at 776- Md.App. at 330 note 579 84 III, Part infra. noting importance of and 77 case); I. also “feel” of the see trial court’s 3, at 57 note 542 Stanley, supra 313 Md. facie case requirements for does not 1277 & n. 11. The record A.2d at intended to are not claim to raise Batson conclude that there was permit the court to of exacti barrier create an insurmountable judge could have on no basis which feder state and is clear in both tude. This presented prima appellant had found that Stanley, supra E.g., al court decisions.5 entitling him to the benefit facie case 3, (reviewing pro 1271-73 542 A.2d at note presumption Batson). under Batson. the rebuttable The federal required cedures 3, supra interpret 313 Md. at 57 Stanley, have not appeals See circuit courts (question whether “le A.2d at 1278 require 542 ed Batson presumption representa mandatory group’s gally rebuttable show the relevant must record, established”). Indeed, supra, jury. on this tion in the venire 1722-23; 96, id. at at undisputed, the court 106 S.Ct. the facts are where com- 97, (prosecutor’s 1723 appellant 106 matter of law that could find as a requirements a findings describe the given emphasis at 1722-23 to on trial court Lane, Teague Little, prima 288, 295, v. facie case. inquiries, response see to Batson 1060, 1067, 103 885, findings appear A.2d at inferred 613 484, Moore, (1989); F.2d v. 895 United States place. to have no Battle, Cir.1990); (8th States v. United 485-86 Cir.1987); 1084, (8th Mejia v. F.2d 1085 836 3, Stanley, supra 313 Md. at 57 note 4. See 356, 522, (1992); State, A.2d Md. facts, (where undisputed at 1277 relevant A.2d Jenkins, N.Y.S.2d People N.Y.2d "independent constitutional court exercises (1990); also 49-50 see 554 N.E.2d respect judgment to the conclusion to be with Dawn, (8th 897 F.2d United States v. them”); supra, 613 A.2d at drawn from cf. Cir.1990) ("number (defer judge's findings rulings and to trial black mem exercises to exclude judge must "consider all relevant circum- enough bers of the venire” is not showing, stances”) (citation omitted); Ryan, Jones all facts should consider trial court (3d Cir.1993) (habeas corpus; F.2d 965-66 circumstances, including "pattern strik ordinarily question mixed of fact Batson claim prosecutor's questions ing blacks and findings and law but trial court failed to make dire”), during voir statements regarding prima ex- facie case and (1990); 960, 111 S.Ct. review). planation; plenary supra Stanley, Md. at note (preponderance for initial standard Courts, fact, shifting produc requirements fairly showing, burden of state the Indeed, generally. simply quote respond the rebuttable Bat most cases tion presumption state discrimination). 96, purposeful Kentucky, supra, of son v. 476 U.S. at 106 S.Ct.

23 (6th Cir.1988).8 However, 1501, spe- pattern may support 1520 ments or of strikes discrimination, on the racial inference of but ex- cific statistical information “[t]hese See, e.g., illustrative”). mandatory, amples merely composition jury of the is not are supra 4, ways are other Ryan, Jones v. partially note 987 F.2d 960 because there Alexander v. (“composition at 970-71 and ‘random’ man- show discrimination.9 1221, Louisiana, 625, 630, selecting panel ner of are immaterial 405 U.S. 92 S.Ct. (1972) (pre-Batson, 1225, to inquiry”; a trial five factors for employ assessing composition grand jury, in a in of court whether discrimination set, “factual prima defendant has established a facie “mathematical standards” not case);6 Moore, case”). supra 5, inquiry necessary in each note 895 F.2d is “fact-intensive,” Appeals (prima Eighth facie case is Circuit Court of has suc- facts, alone”).7 observed, requires just cinctly concluding prima that a “not numbers had been estab- facie case of discrimination Obviously, information the rele about lished, that: group’s representation vant in the venire or See, e.g., Unit re- argument, is relevant and useful. oral Government [a]t Sangineto-Miranda, ed States quested 859 F.2d this court address the ne- races”) added), Appeals’ (emphasis 6. The Third Circuit Court five different of fac members of - -, 882, denied, many ‘cogniza tors are: "How members of the cert. U.S. 112 S.Ct. group' (1992); (statistics panel; ble racial are in the venire L.Ed.2d id. at 1467 of race crime; nature of the the race of the defendant jurors by prosecutor enough are not victim; pattern and a of strikes black prima establish facie case and on mean “take[ ] cognizable group] jurors other racial [or ing only in the context of other information venire; particular prosecutor’s questions venire, and a composition as racial such during process.” and statements the selection by prosecution, race of others struck or 4, Jones, supra note F.2d at 970-71 voir dire answers of those who were struck Clemons, 741, (3d United States v. 843 F.2d compared struck”) were not to the answers of those who Cir.), omitted). (footnotes 109 S.Ct. (1988)) (brackets by the Third Cir Court). cuit Appeals 8. The Sixth Circuit Court of stated: Clemons, supra 7. See also 843 F.2d at 748 to the third and crucial will relevant [I]t (trial judge compo- "should" consider the requirement prima racial of a facie case to know: panel, (1) sition of the the race composition group of the defendant the racial of the initial victim, crime, sworn; (2) and the nature of jury panel but this seated and the final binding judges); "illustrative list” is on trial strikes allowed each number ("the side; (3) id. at n. shall make race were of those who concerning jury panel determinations the relevance of struck or excused from the (whether appropriate”); these statistical factors throughout when the voir dire for cause or Alvarado, 253, 255, challenge), United States v. 923 F.2d the order of (2d Cir.1991) ("Batson’s strikes, they citation of Castaneda v. and whom were exercised. Partida, appropriate 51 L.Ed.2d also be useful to (1977), percentage connection with the assessment of evidence consider as case, Batson, group” jury pool, "cognizable racial in the facie S.Ct. at 1722-23 composition indicates that statistical the racial of the district wherein examined"; disparities appellate jury pool are to be but is selected. general population (footnote omitted). court relied on statistics “as and citation record surrogate” Sangineto-Miranda statistics about the racial com- in the case was a little un- venire; position particular challenge “a race of the venire members who clear about the nearly likely minority percentage rate twice the party were struck and which strike, conducted each strongly supports of the venire although the court was aware that at the ”); trial, Espar original case under Batson panel United States v. defendant’s second ”[t]he cf. sen, (10th 930 F.2d potential jurors 1467 n. Cir. seated consisted of 7 twelve 1991) (disagreeing approach; with Alvarado’s the final blacks and 5 whites.... [and] “only composition the racial panel of the universe in contained at least 7 blacks.” Id. at 1520- relevant”; concluded, operating which the emphasizing its defer- The court acknowledging findings, “not es court was ence to the trial court's that the defen- tablish[ing] this time rule on what case dant had not established disparity pri- amount of statistical constitutes a discrimination because his contention was ma facie prosecution's case. do we intend to diminish the Nor that all of the strikes were aimed importance factors, non-numerical such as at Blacks. Id. at 1521. potential jurors, prosecu the demeanor of behavior, supra tor’s or the voir dire answers of venire 9. See note 5. 24 Green, Corp. v. 792, 804-05,

cessity composi- 411 determining of the racial U.S. 93 jury panel. tion of a We decline to do 1817, 1825-26, (1973). 36 L.Ed.2d S.Ct. 668 inquiry so.... focuses on [A] Likewise, composition racial of em- whether or racial discrimination ex- not ployer’s “helpful,” workforce would be striking person ists of a [BJlack Id. at 805 n. 19, controlling. it is not 93 jury, from the not on the fact that other Thus, dispa- S.Ct. at 1826.12 in a Title VII [Bjlacks may jury panel. remain on the rate treatment the Court stated that: Johnson, United States v. 1137, F.2d 873 plaintiff prove by prepon- must [t]he denied, cert. 1, (8th Cir.1989), 1139 n. 1140 derance of the evidence that she ... was 924, 304, 112 498 U.S. 111 S.Ct. rejected give under circumstances which (1990).10 Clearly, presence of Blacks to an discrimi- rise inference of unlawful jury panel prevent on a a defen does not prima establishing prima dant from facie case- nation. The facie case elimi- ... of a Batson violation.11 nates the most nondiscriminato- common Batson, supra, 476 U.S. at 94 n. 18, ry plaintiff’s rejection reasons for 18, Supreme 106 S.Ct. at 1721 n. Court inference of discrimi- ... “raises an [and] disparate referred to Title treatment VII presume nation because we these describing “prima cases as of facie burden acts, unexplained, if otherwise are more proof rules.” Title VII cases indicate that likely not on the than based consideration prima requirement facie case is not impermissible of factors.” unduly burdensome. In the Title VII con- Dep’t Community Texas text, of Affairs statistics be useful to determine Burdine, 253-54, 248, 450 U.S. 101 S.Ct. employer general if pattern exhibits a Douglas McDonnell 1089, 1093-94, (1981) (cita- of discrimination. 67 L.Ed.2d 207 Supreme 10. The Florida that a if had intent to Court concluded could have struck more Blacks discriminate); Gordon, supra, defendant had established a facie case F.2d at 817 1541 merely by showing prosecutor's (dictum, that four of the potential discrimination one six strikes were aimed at Black ve- seated); juror enough, Bat is even if others are 18, Slappy, nire members. State v. So.2d 5, tle, (same, supra note 836 F.2d at 1086 dic 19, (Fla.), 1219, U.S. tum). 2873, (1988). S.Ct. 101 L.Ed.2d 909 The court composition did not state or consider the racial disparate VII 12. While Batson refers to Title venire, merely and noted that "the final cases, Batson, supra, 476 U.S. at 94 n. treatment [B]lack,” jury panel apparently contained one 18, 18, disparate impact 106 S.Ct. at 1721 n. stating while alone "number[s] [are] may understandably place emphasis more cases dispositive, nor even the fact that a member of comparisons. on statistical See Wards Cove minority question has been seated as 650-55, Atonio, 642, Packing Co. 24, cases). juror.” federal 2115, 2121-24, (1989); 104 L.Ed.2d 733 However, partly the court’s standards were de Trust, Watson v. Fort Worth Bank & 487 U.S. law, rived from its own case which in turn was 2777, 977, 987, 991-92, 2785, provided based on the state constitution and (1988) (disparate impact cases 101 L.Ed.2d 827 protection more for defendants than the federal disparities compet and often focus on statistical constitution. Id. at 20-21. them; ing discriminatory explanations mo necessary legal is tive not but ultimate issue Johnson, 1139; supra, 11. See 873 F.2d at Jen case); disparate same as in treatment Newark kins, 5, (discrimina supra note N.E.2d at Harrison, F.2d Branch N.A.A.C.P.v. Town tory rights jurors, strikes violate "any of individual (3d Cir.1991) (disparate impact cases percentage consideration of the comparison minority represen often involve remaining petit jury compared on [B]lacks pool minority rep tation in relevant labor with percentage community in the [B]Iacks issue) (citing jobs resentation in Wards Cove equal protection analysis is irrelevant to an Atonio, ); Griggs Packing supra Co. v. v. Duke Amendment"); Stanley, cf. under the Fourteenth Co., Power 430 & n. supra 313 Md. at 57 note 542 A.2d at 1278 (1971) (disparate 853 & n. (Md., presence of blacks on not determina- impact). significant Supreme tive, It record revealed number of blacks on veni- Court, Batson, disparate Moore, treatment re); referred to supra see also 895 F.2d at disparate impact (same rather than Title VII cases in percent 486 n. 5 venire, of Blacks in showing discussing type nec “exclusion of and not their in- [B]lacks essary case of for a Batson claim. clusion ... discrimination,” is vital to but consider that U.S. at 94 n. 106 S.Ct. at 1721 n. 18. Black against individual Mary’s Honor to discriminate also St. omitted).13 See tion — attempt Hicks, -, -, and also Center v. persons U.S. in the venire (1993); 2742, 2746-48, 125 L.Ed.2d 407 that racial balance alter the Postal Service Bd. Gover United States eliminating many as by hear his case Aikens, 2, nors v. 713 n. jury panel. At from the possible Blacks as 403 (1983) 1478, 1481 n. 75 L.Ed.2d trial, objected to individual defense counsel (no error to find discrimination reversible by the Black members strikes of venire case); (not statistics merely prima facie pattern as well as to prosecutor employ- of twelve cited were that two members. On against Black venire strikes had promoted plaintiff ahead of ees present- he maintains that appeal, appellant had post-high education and none school prosecutor prima facie ease ed a Broth- In International college degrees). members peremptory strikes to strike States, erhood Teamsters v. United they were solely because of the venire n. n. 97 S.Ct. U.S. Black. (1977), the Court ex- Douglas McDonnell plained under that of her exercised all ten prosecutor The Green, supra, Corp. v. plaintiff strikes, using them to remove peremptory discriminatory in- establish an inference of members. nine Black venire one white and merely showing the most com- by tent that Black venire members struck Six of the non-discriminatory hir- mon reasons for the single voir prosecutor did not answer vacancy ing (e.g., of a decision absence indi- question. prosecutor After the dire qualifica- lack of “absolute or relative per- fifth intent to exercise her cated her tions”) apply. do not strike, defense counsel raised emptory Therefore, apply when courts a Title YII objection under Batson. The analy- disparate treatment-type prima facie jurors she response that not all of was claims, a sis to Batson defendant criminal race and that the same struck were of case of may present prima facie striking only white defense counsel was by showing peremptory that violation objec- renewed his jurors. Defense counsel jurors belonging to a rele- chosen, stating that tion after the was group the most vant were based on government’s all one of the legitimate striking ju- reasons for common dire mem- at Black voir strikes were aimed rors, such as or answers to dire bias voir had not those struck and most of bers supra, 613 A.2d at questions. The tri- questions. any voir dire answered (main function of facie case re- govern- asked, does the judge al “[w]hat com- quirement is to “eliminate the most re- say?” ment have to nondiscriminatory mon reasons her strikes that not all of sponded again strikes”). prosecutor’s peremptory venirepersons

had aimed at been II. counsel had race and that defense same venire members. only white struck types Appellant has raised claims of two there remarked that then su of discrimination described issue” at “resolve that no need to pra, at 106 S.Ct. at 1716- time, free to that defense counsel was im- He contends that the again. issue peremptory challenges raise the permissibly used its applicants persons from to seek a Title VII claim of continued 13. A facie case for complainant’s qualifications. has also been described as racial discrimination plaintiff Green, requiring to show: Douglas Corp. McDonnell (i) belongs noted he to a racial minori- The Court U.S. at 93 S.Ct. [she or] (ii) quali- ty; applied he and was necessarily vary or] VII [she will in Title facts "[t]he that cases, job employer fied for for which specification above of the and the that, (iii) seeking despite applicants; [her or] necessarily appli- required proof is not rejected; qualifications, he was [she or] his differing every respect situa- factual cable in that, (iv) rejection, the after [her or] and position at 1824 n. 13. n. tions.” Id. open employer and the remained late, actual presented to the court those absent were While the record alternates). detailed, might jurors (12-person jury plus the record two have been more De- Therefore, is not barren of relevant information. 33-person there was a provide a statistical (19 fense counsel did not after the dismissals for cause composition of the venire breakdown challenges, plus 14 seated as petit jury, the failure to do so is but jury If 14 members were jury). the all necessarily supra not fatal. note 7. See white, venire had 24 whites and 9 the fact, the the record makes clear that Blacks, making approximately per- 27:3 exhausted prosecutor and defense counsel percent If all cent Black and 72.7 white. venire, trial court the entire so that the Black, the jury members were venire Ev- almost ran out venire' members.14 whites, 23 Blacks and 10 and was had ery who re- one of the venire members approximately percent 69.7 Black and 30.3 challenges mained after for cause was ei- percent white.16 jury by placed ther on the or removed is, therefore, venire, possi- Therefore, challenges It after

peremptory strike. the composition cause, to estimate the racial approximately percent ble for assuming that statistical venire.15 Even Black, percent percent composition information about the racial of prosecutor’s strikes were directed at Black necessary, num- jury the venire or those In addition to these venire members.17 can estimated. bers numbers, explanations for prosecutor’s the vague and mentioned the her strikes were the of the 19 The record reveals race by de- race of the venire members struck by per- venire members were struck who counsel, the one white venire member fense emptory challenges: 9 were struck Blacks ques- by prosecutor the answered by by prosecutor, the 1 white was struck drug most of the tion use while about prosecutor, the and 9 whites were struck prose- Black members struck defense, venire by the or a total of 9 Blacks and questions, and cutor answered no voir dire by peremptory chal- whites were struck peremp- her prosecutor exercised all of lenges. only other members of the venire, jury panel.18 tory challenges for cause or besides those struck attorneys choosing general population. 14. When the finished than the Cen Bureau of Department jury, eligible were venire members there no Statistics Admin., sus, Economic and Metropolitan only juror prosecutor had whom State Commerce, Data Area left— successfully Nelson, (4th 1991); at ed. moved to strike for cause earlier in cf. Book supra, n. process 601 A.2d at 591 remained. Stanley, supra Md. at 57 note 17. See Nelson, contrast, appellate supra, 15. In in cited). (and A.2d at 1278-79 cases court was unable to determine the relevant case, (in jury composition) from numbers are The strikes exercised Nelson, supra, 601 at 590. In the record. addition, determining non- relevant whether running fact the court out group pool when it members remained in the made it of venire members in the instant case prosecutor’s turn to strike. Nel became Cf. predict easier for counsel to which venire mem- son, supra, In the instant 601 A.2d at 590. replace by perempto- those removed bers prosecutor alternated defense counsel and the strikes, ry made it easier to which would have strikes, and defense counsel continued to strike deliberately composition alter the racial jurors originally-seated panel white from the Little, (under jury. See 613 A.2d long process, so that there is into the selection used, possible predict procedures it was not argument that defense counsel's no tenable replace venire member would which stricken jury from the strikes removed all of the whites Eiland, Md.App. juror); supra note at 46 box, cf. leaving only prosecutor to Blacks for the (Md., A.2d at court almost ran out of peremptory strike. Seven of defense counsel's members, prosecutor peremptory fourteen-person were aimed at the jurors place he could strikes to remove some specific so panel in the box before which was seated jury). on the other venire members Therefore, challenges began. since defense counsel's strikes were aimed at all of jurors, popula- there at least seven whites in mirrored the District’s white were 16. If the venire box, tion, very beginning approximately from the it would have been 70% strikes, white, seems, for the chal- who were available black and 30% but it after cause, government may likely lenges to strike. The to have had more whites supra, 613 A.2d at 886 respond to the (prosecu- given opportunity reasons,19 From statement “generalized of reasons tor’s statement view, case, my instant the record may discriminatory motives and thus mask appellant conclude that had the court could to ... a defendant’s at- contribute id. facie case on either of showing”); presented tempt to make a supra Stanley, his Batson times). claims.20 (prosecutor passed at 887 four Cf. 542 A.2d at 1278-79

313 Md. at 57 cases). fol- A limited remand would III. But, 1279-80. low. 542 A.2d at charge has dis- record, least, re- on this the court should “very criminated under is a seri- to the trial court to make mand the case one, acknowledges. majority ous” as the ruling on the defense findings of fact and See majority Supreme opinion at 6. As the challenges prosecutor’s per- of to the use pointed out, implicates Court has no less id. See challenges. A.2d at emptory public justice sys- in than confidence Batson, supra, tem. See 87, 476 U.S. charge of the made The seriousness at 1718. The must S.Ct. ignored by the defense counsel cannot be opportunity accorded an a full be to make too much is at stake. court; majority response to a Batson claim. See Jones v. (Batson opinion at 15 claim “demands Ryan, supra 4, (“pros note 987 F.2d at 972 trial possible scrutiny by closest both the providing ecutor has ‘a burden court”). out, pointed court and this As reasonably specific” explanation “clear and moreover, by Third Circuit Court “legitimate of his reasons” [or her] Appeals: Har ”) exercising challenges’ (quoting Ryan, rison v. 84, (3d Cir.), 909 F.2d if exists the “old tradi- tension between 1003, 568, preference for un- tion” unconsidered Batson, su (1990) challenges 112 L.Ed.2d 574 fettered use of pra, 20, relatively “young U.S. 98 n. 106 S.Ct. at 1724 and the still tradition” 20)). defense, turn, n. meaningful safeguards against invidi- should be ’’) racially-motivated (paraphrasing application’ retaliate McDonnell defense Green, by making racially-motivated Douglas Corp. supra, v. 411 U.S. at strikes of 1826-27); Douglas Corp. proper remedy govern- 93 S.Ct. at McDonnell its own. The for the Green, supra, 411 U.S. at 93 S.Ct. at 1826- ment would be a reverse-Batson claim. See (Title — disparate petitioner VII treatment McCollum, -, -, Georgia v. U.S. given opportunity to asserted must be rebut 2348, 2359, (1992). 120 L.Ed.2d 33 Dawn, employer); supra reasons of note claim, (Batson give trial must F.2d at 1448 court 19. Several Batson cases indicate that the defen develop opportunity” defendant “reasonable to given opportunity dant must be to rebut the record). government’s proffered peremp reasons for its Gordon, tory supra, strikes. See F.2d at Black, appellant 20. The record shows (remanding, where trial court "failed to and, Stanley, supra unlike 313 Md. at 57 note any independent inquiry make or allow [the 1283, 1285, given prosecutor A.2d at opportunity to offer rebuttal evi- defendant] opportunity by judge respond a full to reasons," pertaining dence to the Government's exercising to the defense claim that her she was originally past pattern a Swain claim of of dis- peremptory challenges racially discrimina- in a crimination); Stanley, supra 313 Md. at 57 note tory response ap- prosecutor’s manner. (Md., interpreting 542 A.2d at 1272-73 pellant’s occupies objection one initial Batson given and Title VII cases: defendant must paragraph response transcript, and her reasons); opportunity to rebut id. appellant’s the Batson second articulation of (because 542 A.2d at 1272 “the defendant has challenge appears paragraphs, consti- in three persuading the ultimate burden the court true, transcript. tuting twenty however, It is lines of there has been intentional tion[,] racial discrimina- government was never ex- prosecutor ... once the has come forth pressly appel- informed [prima with reasons to rebut the defendant's presented lant had facie case which case, the defendant then ‘must be give facie] afford- shifted the burden opportunity ed a fair to demonstrate that [the neutral her reasons for prosecutor's] assigned perempto- reason for members. See [the of Black venire ry challenge] pretext discriminatory was a 106 S.Ct. at 1723-24. stereotypes, application of racial ous pre-

then the latter consideration must still

vail. If the former consideration

prevailed, “price” jeop- be the

ardizing integrity judicial

process stigmatization of venire- and the

persons price of color. And such high.”

would be “too supra Ryan,

Jones v. 987 F.2d at McCollum, supra (citing Georgia

— at - note 112 S.Ct. at U.S. turn, citing Edmonson v. Leesville Con — Co., -, -, crete

2077, 2088, (1991)). Ac

cordingly, respectfully I dissent. MATOS, Appellant, M.

Roberto STATES, Appellee.

UNITED

No. 92-CO-509. Appeals.

District of Columbia Court of

Argued May Sept.

Decided

Case Details

Case Name: Jefferson v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Aug 26, 1993

Citation: 631 A.2d 13

Docket Number: 92-CF-309

Court Abbreviation: D.C.