*1 hearsay admitting certain paternity sup- by and Y.B.’s for ible error petition and “say day hearing, testimony On third of the evidence. I can with port. into assurance, pondering all that questions T.B. also answered some relat- after fair ing provided to he to his the erroneous support stripping had without happened time, whole, children. At the he had with that the [trial resided from the action substantially in a two a male Mend bedroom townhouse judgment was not court’s] alleged error,” view, approximately year. my one He “it by and in swayed [its] his were Y.B. “kidnaped” by that children error did ‘highly that probable [the] [is] ” Robinson, that pay and declared he would to the verdict.’ not contribute kidnapper. “tearing” Y.B. of (citations omitted); He accused 623 A.2d at supra, up “destroy[ing] the children’s shoes 432. Corey, 566 F.2d at them.” sister, L.W.,
T.B.’s also testified 1999, July
T.B.’s Prior saw behalf. to she “once, twice,
T.B. children three with his usually.” rarely
times a week She went
T.B.’s T.B. home. So she saw and mainly they paid
children when half one hour visit to her home. She described ROBINSON, Appellant, Leon attentive, “[v]ery loving T.B. as father.” did Y.B. She not see “too often.” Some- STATES, Appellee. stayed times T.B. with L.W. he UNITED “[b]ecause home,” away a stay order from his 02-CF-320. No. is, stay away Y.B. order from of Appeals. District of Columbia Court non-hearsay testimony upon Based J.H.-P., S.G., N.H., A.F., and there was 15, 2004. Argued March substantial evidence of domestic violence 21, July Decided children, presence in the both direct upon and that based reasonable inferences. evidence, top of this substantial
On
testimony pertaining Dr. X im- witnessing could
pact domestic violence
have on children in and im- general, Ty.B. particular Ti.B.
pact had on compelling, considering even without Dr. X
what children told about witnessed.
domestic violence testimony. trial Dr. X’s court credited
And, judicial the trial court took notice of orders, protection civil four
several
which were filed Y.B. were two of which
lodged by T.B. 1994 and 1998. compelling,
Given this record of substan- evidence, I am competent
tial and satisfied commit revers- trial court did not *3 Co.,
v. Leesville Concrete U.S. 2077, 114 (1991) 111 S.Ct. L.Ed.2d 660 (citing Sharpe, Bolling 347 U.S. (1954)). S.Ct. 98 L.Ed. This case concerns claim discrimination in selection race and gender, based on as the prosecutor at Leon Robinson’s majority trial used a of his strikes to exclude women from jury. *4 Appellant that prima asserts he made a Frankfurt, Jaclyn S. Public Defender showing facie in the trial court of unconsti- Service, Klein, with James whom Public tutional, by the purposeful discrimination Service, brief, Defender on was for prosecutor against in the the black women appellant. jury venire. His on primary contention McCord, Mary B. Assistant United appeal is that trial court committed Attorney, States with whom Roscoe C. objec- in overruling reversible error his Howard, Jr., Attorney, United States and tions determining without whether Leon, John R. Fisher and Glenn S. Assis- acceptable justifications for Attorneys,
tant United States were on the jurors.1 removing these prospective brief, at the brief time the was filed for appellee. did, In ruling rea- as it the trial court soned race-and-gender that combinations WAGNER, Before Judge, Chief pro- are not “suspect categories” equal GLICKMAN, Judge, Associate and tection purposes, and that and Batson STEADMAN,* Judge. Senior J.E.B. do prohibit therefore not discrimi- nation in wom- GLICKMAN, jury against selection black Judge: Associate en or groups by other defined the intersec- The of peremptory exercise chal gender tion of In our identity. racial and lenges against prospective discriminate view, application the trial court erred its jurors on gender the basis of race or equal protection principles. holdWe unconstitutional. v. Kentucky, Batson 476 purposeful that the prospec- exclusion of 79, 88, U.S. 90 S.Ct. L.Ed.2d 69 jurors tive and because are black (1986); Alabama, J.E.B. v. 511 U.S. female is discrimination on account of both 145-46, S.Ct. L.Ed.2d 89 race and direct violation of Bat- (1994). Each type of discrimination of appel- son and J.E.B. further We hold Equal fends the Protection Clause of the strong lant prima made a facie Fourteenth Amendment and “the equal purposeful such discrimination. trial protection component of the Fifth The Amend ment’s by demanding Due Process court Clause.” Edmonson therefore erred * Judge Judge Associate Steadman was an of the women without re- argument. court at the His time of status gard government argues to their race. changed Judge, to Senior on October appellant abandoned this alternative 2004. holding claim our of discrimination. Given black, regarding the women who were Appellant also that he claims established a we do not the issue. reach by facie case of discrimination attacking with the same metal satisfactory explanation prosecu- from was S.M. tor for his strikes. against appellant’s he had used moth- pole and mother er. Both testi- in- for a
We decline remand belated for the fied defense. quiry into the motives. case, inquiry years after memories dire, commencement of voir Before the jury in- selection have faded would be and court reviewed selec- counsel herently appellant, unreliable and unfair to ques- procedures tion discussed party proof. Ac- with burden posed potential ju- tions would be cordingly, appellant’s we reverse convic- possible rors to uncover biases other tions. He is entitled to a new trial before questions ap- for exclusion. The grounds petit jury taint of selected without the court covered the usual proved unconstitutional discrimination.2 areas, including jurors’ knowl- prospective case, witnesses; edge parties,
I. service; grand jury past jury their Appellant seventeen-year-old personal their involvement with law en- tried as an male adult police attitudes tes- forcement and toward *5 charges to of assault with intent kill while timony; experience with violent their shotgun armed awith and related offenses. crime; might their beliefs that personal S.M., undisputed It was appellant that shot serving jury; interfere with on the male, also a after young moments prosecutor matters. The other relevant appellant’s S.M. struck mother in the face that “one area of concern” was stated his with a the pole metal and knocked her to unduly jurors sympathize would with who ground. prosecution charged ap- The young To with a male defendant.3 address pellant in act of as revenge shot S.M. ie., concern, ju- court to ask scene, agreed this the fleeing S.M. was without the about “crimes legal justification. feelings rors whether their Appellant claimed that sister, protect he shot men in this by young S.M. his whom committed or prosecutor explained as In addition to his claims of 3. The this concern discrimination selection, jury in the asserts that follows: trial court committed reversible error in other just anecdotally col- I have heard from respects: by temporarily restricting com- his issue, leagues this is an that sometimes counsel, limiting munications with his his young concern where a defendant is man complainant, cross-examination exclud- of the My juvenile.... and the fact that he’s a ing regarding past aggressive evidence con- who, you concern is that there’s a complainant, by instructing duct the the know, a, quote, juvenile this thinks that is complainant jury engaged that the had not in might go own off on or her views reversing appel- such conduct. As we are and, young grounds, what should be done with men lant’s conviction on Batson and the it, discretionary again, especially circumstances that led to these have witnesses since we rulings materially will be will not recur or juveniles may become who are and it clear retrial, we see need to different in no anyone juve- jury the under 18 challenged rulings appeal. review in the law, I an issue think nile under the this is by The court will be bound those trial I want play in in this case and don’t that’s rulings changed appellant’s in the context to, to, jury I don't think the I don’t want Stanley, new See trial. United States defendant, help harm but I it should or the (2d Cir.1995) (noting F.3d help obviously want the defen- don’t it to man- trial court “retains under the discretion dant. reconsider, remand, date rule to issues 'expressly implicitly’ decid- that were not court) (citation omitted). by appellate ed” the n age group” would make it jurors difficult for The first fourteen on the list then them to be fair. in jury were seated box. Twelve of jurors male, these were including the two Thereafter, potential jurors assem- in designated the seats for the alternate bled the courtroom and were handed a jurors. In selecting regular the twelve copy written agreed-upon questions. jurors, each side was entitled to exercise loud, The question court asked each out strikes, up to ten peremptory with the first instructing jurors to circle the num- strike each belonging pros- round to the any questions bers of to which round, jurors ecutor. Following each respond fifty affirmative. A total of struck from jury replaced box were prospective jurors brought up then were jurors panel. the next line from one-by-one the bench for follow-up inqui- parties jurors The were free to strike from ries questions directed to the they had box, ie., jury panel,” outside the “from fifty jurors, marked. Of these twelve had on the if understanding that both sides did any questions, not circled and their inter- round, so in the same the twelve views were perfunctory. who were seated in the at that time box jury. would become Based on the After the questioning individual selected, bench, parties had one addition- the court struck nine members apiece jurors. al strike for the alternate of the venire for cause. The moved to strike two additional used his first strike male, cause—Juror # a white and Ju- against Juror # the white male whom # ror a white female—but court the court had declined to strike for cause. declined to placed do so.4 The court four round, In the second struck *6 (all male) who hardship claimed at 376, female, Juror # a black from the pan- list, the end of the where would not juror el. This questions had circled no on be reached even if each party exercised all her questionnaire and neither counsel had peremptory This decision strikes. ef- anything asked her In the bench.5 the fectively left a panel thirty-seven poten- round, third prosecutor the struck Juror tial 876, males and eighteen # who was also black female. The —nineteen females—from appellant’s which jury prosecutor juror had not asked this would be round, selected. questions either.6 In the fourth 4. respon- -Juror # 390 said he you you could fulfill his you assume that could-—do feel by appellant’s impartial juror sibilities but was troubled could be a fair and in this youth "just and ... worrie[d] that kids that trial? early pun- make mistakes so on in life are THE JUROR: Sure. ished, even if it’s a serious mistake.” The Any questions? THE COURT: prosecutor objected juror to this because he No. [PROSECUTOR]: "very equivocal passing judgment about Any questions? THE COURT: on children.” Juror # who had been [DEFENSE COUNSEL]: No. arguably in another case of an justified Okay, you. THE COURT: thank shooting, admitted that she "would have a 6.Although Juror #876 had indicated on her very deciding fairly, hard time” this one questionnaire might that she be familiar with though thought in the end she she could do occurred, shooting the area where the at the prosecutor so. The was "not convinced that any "specific bench she disclaimed familiari- put personal she could ... her beliefs aside.” ty” that would make it difficult for her to be fair, during challenged 5. Juror # and one 376’s interview at the bench no that assessment. proceeded voir dire went as follows: Her interview as follows: you THE COURT: Hi. You have not circled THE COURT: ... have said [Y]ou
any answers. Does that mean I should are familiar with area. prosecu- that the acknowledged The court again a # struck Juror black fe- were of three strikes tor’s last juror who This was another female. panel males, disputed no one question- her questions no on had circled and was females or six black only had five interview, In her individual naire. Nonetheless, court white. two-thirds she only that had elicited pattern to discern it “too soon” thought Army Guard.7 for the National worked facie case “a establish that would re- counsel’s so denied under Batson” and in- counsel juncture, appellant’s At this required prosecutor be quest chal- peremptory the exercise of terrupted his strikes. reason for a “neutral” proffer acceptable explanation lenges to seek an challenges The exercise strikes: six, pros- five and In rounds resumed. just government I ask the females, from one two white ecutor struck [sic8], gender neutral a reason proffer the'panel.9 from and one box This is three strikes. for the last reason round, struck the seventh white, probably two-thirds panel that’s female, from # another black Juror maybe or six black females with five questions no had circled panel. She bench, and, no answers to gave I of them at the believe two questionnaire her a cook.10 she worked as only that at all. revealed posed by the court any questions response that No, the court’s the context and D.C. and from it’s northeast THE JUROR: is, actually street and.” just want to know what the cross said "race I counsel general location. - COURT: It’s near Montana THE panel, had "a struck from 9. Juror # Montana, It's near [PROSECUTOR]: flu,” a dental bug, and had scheduled not the general area. morning during the trial. procedure for a Avenue, Island COURT: Rhode THE questions, ex- no had answered Juror #558 Avenue, many Saratoga. How Montana be a fair cept that she could to confirm roughly Saratoga? blocks from impartial juror. Brentwood. THE JUROR: is one of Brentwood [PROSECUTOR]: went as fol- Juror # 833 The interview of streets. the cross lows: *7 Okay. over THE JUROR: That’s office, okay. post no answers. You circled THE COURT: nothing about COURT: And there’s THE you a fair you could be that mean feel Does your familiarity would make it specific case? impartial juror in this you to be fair? difficult Yes. JUROR: THE THE JUROR: No. Anyquestions? THE COURT: you ma’am. THE COURT: Thank ask, you, do are Can I [PROSECUTOR]: working you thusly: proceeded of work? Are you 7. # 898’s interview have a field Juror you worked? no or have juror. You have COURT: Next THE working you now? feel Where I’m assume that means THE JUROR: circles and I you be fair. Yes. could [PROSECUTOR]: Yes, Yes. THE JUROR: work. I THE JUROR: Any questions? field, COURT: Great. THE do what What [PROSECUTOR]: just ask where Can I [PROSECUTOR]: you do? work, you you work? if a cook. I’m THE JUROR: Army National Guard. JUROR: THE cook, Oh, you’re a [PROSECUTOR]: Any questions? COURT: THE okay. No, you. thank COUNSEL]: [DEFENSE Yes. THE JUROR: you, ma’am. COURT: Thank THE Any questions? THE COURT: No. COUNSEL]: [DEFENSE appears the tran- as it Although the word you, ma’am. "reason,” THE COURT: Thank likely it more we think script is round, factors, the next eight, prose- completes round date the [sic] the way juror suspect cutor struck a fifth factors black female make it (Juror #371). if impossible to determine it’s a She, too, race had circled no (cid:127) neutral reason. questions on her At answer sheet. bench, example, prosecutor] For while only [the she had disclosed that she couple have exercised a of chal- physical worked as a therapist.11 Except females, against lenges black he has not to ascertain Juror # employment, 833’s exercised peremptory challenges against questioned had' not either of and, therefore, black males it cannot be jurors. these two said that his strikes are based on race point, At this citing the fact that and while he has exercised a number of eighth seventh and strikes females, against strikes black he has not females, were of black appellant’s counsel against exercised a number of strikes request renewed his acceptable for an ex- females, white so it cannot be strikes planation: gender. based on Again, neither of them two black [the He has stricken about an equal num- jurors] gave any female answers. I ber of blacks and whites and although a think of all the black females who have disproportionate number of females and been only gave any stricken one answer ], males [sic first strike he exercised questions of the court’s and that and, therefore, was a white male only just had been on a I do not think there’s a basis under jury before.12 I gov- So would ask the Batson to demand a race neutral reason proffer ernment to race neutral reasons at this stage. for their strikes. Accordingly, require the court did not rejected The court request, giving this explain why he struck five rationale: eight female his first my
It is legally belief strikes. there’s suspect category of black females or ruling, After the court’s fin- parties black males or white males white ished exercising their chal- ' ' females. prohibits This the exercise of lenges. The prosecutor used his next peremptory challenges race, based on strike, round, in the ninth to remove the maybe sixth, based certain oth- presumably remaining, the last factors, suspect you er but when consoli- black female the venire.13 Like 11.Juror # 371's Okay. interview was as follows: [DEFENSE COUNSEL]: Thank you. you THE COURT: Hello.... Since have *8 you, THE COURT: Thank ma’am. circles, you you no should I assume feel accurate, 12. This characterization was not impartial juror could be a fair and in this jurors since none of the black female whom trial? prosecutor reported previous the struck had THE JUROR: Yes. jury. (Appellant's service on a counsel Any questions? THE COURT: thinking have been of Juror '# white the No. [PROSECUTOR]: juror prosecutor female whom the had tried Any questions? THE COURT: 4, supra.) cause. strike for See footnote It [DEFENSE COUNSEL]: What sort of true, however, ju- was that the black female you work do do? given any apparent rors had no answers of THE JUROR: Excuse me? significance. [DEFENSE COUNSEL]: What sort of you work do do? presume 13. We this was the last black female Physical therapy. juror THE JUROR: because no one contested defense coun- noted, first, his juror four of not circled He that predecessors, her had issue.” at the im- questionnaire, on her from the which anything panel,16 were strikes prosecutor only jurors the asked about bench had he was satisfied with plied that job publication manager.14 as a her jury box. seated in the who then were stated, Moreover, made prosecutor he strike, prosecutor his tenth With female) (black round his seventh strike This panel. # 162 from the struck Juror from his without even *9 exer- As counsel her is corroborated. Any struck questions? COURT: THE strikes, they on the No, wrote down cised their you. thank COUNSEL]: [DEFENSE challenge gen- race and form the peremptory you. COURT: Thank THE removed, but the juror who der of each gender of prosecutor a model of omitted the race # 708’s interview was 15. Juror # 833. brevity: Juror 1282 88, 106
race.” 476
at
1712.
U.S.
S.Ct.
The
has used
chal
emphasized
unconstitutionally
Court
that “the
in an
lenges
Constitution
discrimina
“First,
prohibits
purposeful
tory
all forms of
racial dis
manner.
the defendant must
jurors.”
‘by
prima
crimination
selection of
Id. In make out a
facie case
Alabama,
totality
gives
J.E.B. v.
extended
the relevant facts
Court
Batson, holding
Equal
discriminatory pur
that “the
to an
Protection
rise
inference
” ie.,
prohibits
prosecu
Clause
in jury
pose,’
discrimination
se
an inference that the
lection on
of their
gender”
the basis of
as well as
tor has struck
on the basis
129, 146,
California,
race. 511
at
114
v.
gender.18
U.S.
S.Ct. 1419.
race or
Johnson
—
2410, 2416,
U.S.-,-,
years
As the Court has reiterated over the
125 S.Ct.
—
Batson,
4460,
-,
in jury
since
se
4461
“[discrimination
L.Ed.2d
73 USLW
lection,
93-94,
Batson,
gen
whether based on race or on
476
at
106
(quoting
U.S.
der,
1712); J.E.B.,
144,
litigants,
causes harm to
at
114
the com S.Ct.
511 U.S.
Second,
munity,
requisite
and the individual
1419.
if the
show
who are S.Ct.
made,
wrongfully
ing
prose
is
shifts to the
participation
excluded from
burden
judicial
140,
“give
reasonably
cutor
process.”
spe
Id. at
114
clear and
S.Ct.
explanation
cific
very
legitimate
1419.
of his
reasons”
integrity
“[T]he
of the courts
strikes, Batson,
for the
476
at 98 n.
jeopardized
is
U.S.
prosecutor’s
when
discrim
20,
(internal
106
1712
quotation
S.Ct.
cynicism respecting
ination ‘invites
omitted), ie.,
marks and citation
to offer
jury’s neutrality,’ ...
pub
and undermines
gender-neutral
race- and
“reason[s]
adjudication.”
lic confidence in
Miller-El
—
deny
Dretke,
U.S.-,
-,
equal protection.” Purkett
do[]
v.
125 S.Ct.
—
Elem,
765,
1769,
769,
2817, 2324,
v.
514 U.S.
115 S.Ct.
-,
L.Ed.2d
73 USLW
(1995).19 Third,
(2005).
if the
4479,
neutral [and
subsequent
pretextual
light
Batson and
deci
to be
or
of all
credible”
sions, the
Supreme Court outlined three-
the relevant evidence. Miller-El v. Cock
rell,
322, 339,
1029,
step process
evaluating
claims that a
537 U.S.
123 S.Ct.
discriminatory
say
18. exclusion of even a sin-
it can sometimes be hard to
what the
J.E.B.,
gle juror
objectionable.
See
illegitimate grounds like
reason is. But when
142,
1419;
U.S. at
issue,
114 S.Ct.
Little United
prosecutor simply
got
race are in
has
States,
(D.C.1992).
613 A.2d
885-86
to state his reasons as best he can and stand
plausibility
fall
reasons he
given;
Specific
prose-
reasons must be
Dretke,
gives.” Miller-El v.
125 S.Ct. at
prima
cutor
not rebut the defendant’s
unlikely
at
event
1283
2417,
(2003).20
Johnson,
at
125
at
73 USLW
S.Ct.
L.Ed.2d 931
explain,
went on to
4462. As the Court
case, however, the trial
present
In the
and inferences”
“suspicions
reasonable
process
court did not follow this
to the
“may have” occurred
that discrimination
did not
steps.
second and third
The court
inquiry:
enough
trigger
are
to
the Batson
justify
to
his strikes
require the
to
designed
The Batson framework
of
female
or determine wheth-
suspicions
actual answers
produce
valid, be-
prosecutor’s
er the
reasons were
that discrimination
and inferences
appellant
failed in the
cause
ruled
process.
selection
have infected
step
prima
showing
first
to make a
facie
of
97-98,
[Batson,]
U.S., at
and n.
476
See
racial or
discrimination.
20,
uncer-
106
1712. The inherent
S.Ct.
tainty
inquiries
of discrimina-
present
B.
tory
against engaging
counsels
purpose
a defendant has satis
“Whether
imperfect speculation
needless
a
making
prima
fied the burden of
facie
by
can
a direct answer
be obtained
when
law,
question
namely,
a
of
whether
case is
asking simple question.
government’s
the voir dire record of the
2418,
at 4463.
Id. at
73 USLW
strikes,
by
de
as shown
“spoke of the methods
Batson
fendant,
necessary
raised ‘the
inference of
”
proved
could be
by
prima
which
facie cases
Little, supra
discrimination.’
purposeful
5,
at 2416 n.
73
permissive
terms.” Id.
Batson,
18,
(quoting
note
tion that “black females” are not a “sus-
that nei
purposes
for Batson
pect category”
equal protection pur-
for
difference
of
alone accounts
type
ther
bias
poses.
question
The critical
under Batson
impermissible
If it
to exclude
J.E.B., however,
strikes.
is
is not whether “black
gen
of
race or their
because
their
“suspect category”
females” constitute a
der,
impermissible
it is
to exclude
(or,
said,
“cognizable
as it is sometimes
gender.
their
because of their race and
Rather,
group”).
question
the critical
is
peremptory
for a
partial
Two bad
reasons
purposeful
peremptory
whether the
use
reason;
good
to a
up
strike do not add
(or
strikes to exclude black females
other
a reason
is
they simply equate to
groups
in
plus gen-
defined
terms of race
violation,
a Batson
doubly
prove
To
bad.
der)
gender
involves racial
discrimi-
and/or
prosecu
that a
a defendant need
show
does,
nation.
If it
then it offends basic
solely by ra
motivated
tor’s strikes were
principles
equal protection
pro-
and is
bias,
of all
cial
to the exclusion
gender
or
hibited under Batson and J.E.B.
requirement
other considerations. Such
Supreme
and the lower
While
Court
nullity and
would render
a virtual
Batson
yet
explicitly
federal courts have not
held
jury
world of
divorce
from the real
purposeful
that the
exercise of
selection,
per
for the motivations behind
challenges
race-gender groups
to exclude
crystallized
emptory strikes are seldom so
jury
equal protection,
from
service violates
are the
singular.
Mixed motives
practice.
state courts have condemned the
However,
if
even
norm.
See,
Jordan,
e.g.,
v.
439
Commonwealth
motives,
some which
acted from mixed
47,
368,
(2003);
Mass.
785 N.E.2d
380
Peo-
deny
actions
non-discriminatory,
were
Garcia,
119,
ple v.
217 A.D.2d
636
if
Batson
race
equal protection and violate
(1995).
Supreme
N.Y.S.2d 370
After the
A per
his decision.
gender influenced
J.E.B.,
there can be no
Court’s decision
emptory challenge may not be based even
doubt that it is unconstitutional. “Allow-
discriminatory
partially on an unlawful
ing parties to remove racial minorities
States,
v.
reason. See Tursio United
jury
gender,
from the
...
of their
because
(D.C.1993) (“[R]ace
1205,
A.2d
1213 n. 7
equal protec-
contravenes well-established
factor,
if a minor
impermissible
an
even
J.E.B.,
principles.”
tion
U.S.
one,
It
exercising peremptory
strikes.
definition,
By
The
used 60% of his
of
peremptory strikes
exclude 91%
(6
10)
tory
members,
out
strikes
of
to eliminate all six ble African-American venire
jurors,
of the
up
only
jury,
black female
who made
one
on the
“the
served
(6
37).
only
16% the venire
out of
If the
some de-
statistical evidence alone raises
prosecutor strikes in
prosecution
distributed his
bate as to whether the
acted
reason”);
proportion
representation
to the
Hill
Capitol
with a race-based
venire,
Baucom,
760, 765,
by
race and
Hosp.
he would
v.
697 A.2d
770-
(counsel
(D.C.1997)
only
have struck
one or two of the black 71
used all his strikes
jurors. Thus,
jurors,
female
eighteen
we see
sizable
white
who were
venire); Tursio,
disparity
statistical
at
discriminatory
percent
of the
634 A.2d
entitled to the defense that
have
30. The lower courts are divided on
Howard,
question. Beginning
taken the same action in the absence of the
with
the feder-
Howard,
improper
generally
recognized
appeals
motive.”
F.2d at 26.
have
al courts of
defense,
Supreme
yet
Court has
to decide whether
the affirmative
while some state
rejected
contrary
such an affirmative defense is available in the
courts have
it as
to Batsons
327;
whether,
Kesser,
example,
principles.
392 F.3d
McCor-
Batson
See
context—
However,
mick,
challenges
peremptory
can save
group
obligation
provide
explana-
constituted
race-neutral
—whites—that
twenty-six percent
venire”);
United
tions
appears
statistically
for what
to be
(2d
Alvarado,
F.2d
significant
States
pattern
racial
*13
Cir.1991) (prosecutor used half of his
by
oppor-
challenges simply
foregoing the
against minority jurors,
com-
strikes
who
tunity
against
all
his challenges
to use
of
venire;
the
posed an estimated 29% of
“a
Id.;
Batson, 476 U.S.
minorities.”
at
cf.
challenge
nearly
likely
(“A
rate
twice the
mi- 95,
single
1712
invidiously
106 S.Ct.
nority percentage
strongly
of the venire
discriminatory governmental act is not im-
supports
prima
a
facie case
Bat-
under
by
munized
the absence of such discrimi-
Roe,
son”);
Fernandez v.
286 F.3d
making
comparable
nation in the
of other
(9th Cir.2002) (prosecutor
used 21%
(internal
decisions.”)
quotation marks and
Hispanics,
con-
against
of his strikes
who
omitted). Further,
citation
“the mere fact
venire).
of
stituted 12% the
...
prosecutor
a
the
also struck white
(or
or,
juror
jurors)”
the trial court
as
the
dismissing
significance
here,
juror,
observed
one
male
is not
white
prosecutor’s disproportionate
con
Little,
significant.
at 886. “A
A.2d
against
centration of his strikes
fe
black
single
juror
strike of a
can be a
white
males,
the following
the trial court cited
conceal)
(or attempt
to conceal
a
means
factors
addition to its belief that “there’s
pattern
striking
jurors, or it sim-
black
suspect
a
of black
category
not
females:”
ply
unrelated to
used
may be
other strikes
(1)
peremptory
“he has not
chal
exercised
discriminatorily.” Id.
and, therefore,
lenges against
males
black
by
-government’s
it cannot be
that his strikes
We are unmoved
the
said
are based
(2)
race;”
that, on
when
“while he has exercised a observation
three occasions
females,
against
juror
number of
black
there
a black
seated
strikes
was
female
box,
juror
a
prosecutor
not
a number
the
struck
he has
exercised
of strikes
females,
panel
government
white
so
cannot be
from the
instead. The
against
(3)
gender;”22
posits
prosecutor
based on
has
that if the
had intended
“[h]e
strikes
females,
equal
against
about
number
to discriminate
“he
stricken
of blacks
black
(4)
whites;”23
a
would not have left
black female
“although [the
and
and
pan-
disproportionate
exercising
num
box while
from the
prosecutor
strikes
struck]
el,
that,
...,
if the
struck
risking
the first
he
defense also
ber
females
strike
passed,
from
panel
male.”
the black female
exercised
white
factors,
argument
individually
empaneled.”
either
But this
None of these
be
strong
change
prosecu-
does
the fact that the
aggregate,
or in the
refuted the
not
on black
on tor focused the strikes he made
prima
facie
of discrimination
jurors
as to eliminate them from
prosecu
of race
female
so
account
explain why
it does
jury,
fe
not
he
tor’s
elimination
black
It is
did
It is fallacious to assume
jury.
males from
well-settled
so.
prosecutor’s
temporary willingness
Bat-
discrimination condemned
“[t]he
juror negates
single
not
as
“risk” a
black female
need
be as extensive
numerical-
son
accurate,
eight jurors
prosecutor
not
Of the
whom
22. This statement was
inasmuch
already
per-
point,
exercised
as the
had
as of this
were black.
struck
five
emptory challenges against two
female
white
jurors.
indicates,
discriminatory
all the
knew
other indications
record
Little,
than that
supra
nothing
intent. See
note
618 A.2d
about these
other
(“a
See,
prosecutor’s
pass
they
e.g.,
at 887
decision to
black and female.24
were
(7th
Hanks,
not,
peremptory challenge
use
does
Morse v.
F.3d
alone,
Cir.1999)
standing
signal
(holding
a mind that is free
that “when the voir dire
discrimination....”).
Upon inspec-
perfunctory
from
is as
as this one was—the
tion, moreover,
strikes
were
little more
potential
asked
panel
meaningful
from the
are less
than
than
would treat both sides
whether
government supposes.
equally
On two of the
facie case is established”
—a
government
only
three occasions to which the
where the
strikes the
(in
seven),
venire);
points
pros-
rounds two and
in the
Miller-El v.
cf.
Dretke,
pan-
ecutor struck a black female from the
Indeed, young being other factors of which the trial was a black man tried as an apprised strengthened appel- court was he committed he was adult for acts when prima showing. prosecutor openly lant’s facie It a minor. The especially still noteworthy jurors expressed jurors who would black female concern about young had furnished no information in voir dire male defendant. sympathize with certainly from any would have afforded reason to These facts do not detract them, and that that the was mo- prosecutor prosecutor strike had the inference who, jurors virtually questions asked them no at the to strike black female tivated stereotypes that we bench uncover such reasons. So far as on the basis Any suggestion prosecutor might jury. prospective jurors that the on the Of the seven jurors precisely category have struck the black female “no information” whom in the them, nothing females, strike, because he knew about which prosecutor were black did five reason, gender-neutral be a race- male, a white one was a black and one was by prospec- is belied the record. Four other anything, fur- If these numbers lend female. questions pro- tive who circled no prosecu- support to the inference that the ther virtually vided no information at the bench— racial and bias. tor was motivated up two white females and two males—ended difficulties with late court has set out its sym- most might be considered deprecate, witnesses, already given. explanations and his appellant, his pathetic to defense. Id. at 767 n. 21. prima made a hold that We Tursio, hand, we con- on the other that the unconsti- facie on remand to recon- cluded that effort challenges tutionally exercised be motives would struct they were black against six because explained: futile. We trial court therefore and female. The remand for the Theoretically, could we proceeding to the second erred probing to conduct the kind of trial court inquiry. steps
third
of the Batson
and to
inquiry required on this record
determine,
inquiry, whether
after the
III.
facie
rebutted
reme-
appropriate
We next consider
We do
showing of racial discrimination.
conduct
dy for
trial court’s failure to
however,
so,
rea-
for two related
not do
necessary
inquiry.
ques-
Batson
explanations
sons:
remedy
is committed
our discre-
tion
opin-
in this
... as discussed
proffered,
previously
addressed
tion and has been
ion,
amplifica-
little if
room for
leave
*15
cases,
In each of those
two of our cases.
discernibly
a
produce
tion
one,
pro-
the trial court had
unlike this
peremptory
non-racial motivation-for the
steps
third
to the second and
ceeded
and,
event,
strikes;
unlikely
it is
and a record had been
inquiry,
Batson
cultivate his
that the
could
prosecutor’s reasons and the
made of the
memory at
late date to elaborate
this
In both cases we
trial court’s assessment.
credibly
justifications that would
further
was
found that
the court’s evaluation
already proffered.
refine the reasons
as
reached different conclusions
flawed but
a remand for
say
we do not
While
remedy the
course of action to
to
best
like this could
inquiry
further
a case
Hospital, we
deficiency.
Capitol
In
Hill
remedy, we
appropriate
never be the
proper
for “a
redeter-
remanded the case
under
the circumstances
believe that
mination,
directing “the
possible,”
if still
futile.
be
here such an exercise would
appropriate weight
judge
trial
accord
[to]
Accordingly, in Tursio
A.2d at 1213.
evidence,
apply a
[to]
and
to the statistical
of con-
judgment
reversed the
simply
we
scrutiny to
rigorous
more
standard
a new trial.
viction and remanded for
for his strikes.”
explanations
counsel’s
misgiv-
did this with
Although the (other than the justifications for his strikes develop to further the trial court uninformative statement findings prosecutor’s specific more record and make 833), # or of law, “just like” may be he didn’t Juror of fact and conclusions under supported or the facts years after the whether impracticable to do so parties justifications. those Moreover, an on-the- mined the value of fact. motives, proceed. now should disagree in- as to how we exploration of counsel’s spot his conviction us reverse opportunity Appellant asks cluding the trial court’s trial, gov him a new while candor, likely grant to be counsel’s is assess trial to remand for the urges us appel- once the ernment diminished significantly explana- contemporaneous hearing prosecutor’s court to hold a to determine the ju- all six female prosecutor’s peremptory striking reasons for his tions for rors, jurors. giving strikes of the six black female or to observe demeanor explanations explanations. such Whatever necessary appel deem it to reverse We later, years offer outright. inqui A lant’s conviction Batson time and the benefits of the first with ry simply replicate at this late date cannot than hindsight preparation, are less probing inquiry appellant which substitute, “a satisfactory only if because entitled, and it is who would be fresher, explanations will be prosecutor’s prejudiced most as a result. The Batson candid, given if are perhaps more inquiry supposed rigorous to be evalu for re- before the has time credibility ation of the of the prosecutor’s Tursio, 634 A.2d search and reflection.” explanations challenged peremptory for his at 1211. Cockrell, strikes. See Miller-El (“the
U.S. S.Ct. issue Furthermore, since the written record comes down to whether the trial court nothing justify contains that would prosecutor’s expla finds the race-neutral concentrated Tursio, credible”); nations to be 634 A2d challenges jurors, any of black female (“unless at 1211 rigorously the trial court justifications might he offer at a plausible the prosecutor’s scrutinizes race-neutral hearing would be based on belated Batson explanations, promise Batson’s of eliminat matters not reflected in the record —such ing racial discrimination in selection mannerisms, voice, as the tone of or other one”). case, will be an empty prosecu- factors that caused the unknown however, delay years over three un say “just tor to he didn’t like” Juror doubtedly has “impair[ed] [trial meaningful # A assessment of such 833.25 *16 ability to make an court’s] informed as justifications rely heavily would have to on prosecutor’s] sessment of reasons.” [the prospective demeanor evidence as to the Henkel, Owens-Corning Fiberglas Corp. v. and as to the himself. (D.C.1997) 1224, (holding 689 A.2d 1228 See, States, e.g., Epps v. United 683 A.2d challenge that a Batson must be made (D.C.1996) 749, (noting explana- 753 before jury empaneled, the is since a challenges commonly for peremptory tions prompt hearing is “essential if a Batson body lan- upon venireperson’s “focus issue to in is be addressed an effective and demeanor,” and that such sub- guage or manner”). meaningful jective explanations require the closest (citation omitted); thing, scrutiny)
For one
Miller-El v.
proce-
while the Batson
Cockrell,
339,
heavily
dure relies
on
of
on-
at
1290
(9th Cir.1990).
York,
352, 365,
That critical opportunity
New
500 U.S.
111 S.Ct.
(1991)).
1859,
A.2d at 1228.
did,
hand,
upper
rors as
it has the
it
potentially
The loss
critical evidence
therefore,
reason,
complain
less
about
appellant,
is
problematic
most
since
delay.
being disadvantaged by the
have the
proof
he who would
burden of
stage of a Batson
do
that a
for a
inquiry.
the third
See We
not hold
remand
Purkett,
finding
belated
inquiry
514 U.S.
Cir.1992). We deem this to be such
case; prompt the failure to conduct the
hearing to which entitled by conducting
cannot be rectified an una-
voidably inferior substitute for such view,
hearing only now. our fair
remedy on the facts before us is reverse appellant’s grant conviction and him a new BURNETT, In re Michael O.
trial. Respondent.
So ordered. A Member of the Bar of the District STEADMAN, Judge, concurring Senior Appeals. of Columbia Court of in part dissenting part: No. 04-BG-1476. join I I parts majority and II of the However, opinion. pre I think that it is Appeals. District of Court of Columbia outright point mature to reverse at this this record. parties Both here were well July Submitted 2005. might key aware the Batson issue be July Decided review, on appellate possibility and the of a need for inquiry further would not come as surprise. I give would remand to
trial judge parties opportunity and the
to determine a fair whether and reliable inquiry
Batson can now be undertaken judge whether the trial must order instead GLICKMAN, Judge Before: Associate application a new trial. The of Batson KERN, Senior NEWMAN *18 depends great measure on the sound Judges. See, judgment e.g., the trial court. Her York, 352, 363-70,
nandez v. New
500 U.S.
PER CURIAM.
(1991).
I
111 S.Ct.