Appeal from the Superior Court of the District of Columbia; (Hon. Fred L. McIntyre, Trial Judge)
Before Rogers, Chief Judge, and Terry and King, Associate Judges. Opinion for the court by Associate Judge Terry *fn1. Dissenting opinion by Chief Judge Rogers.
The opinion of the court was delivered by: Terry
During the voir dire, after several venire members were excused for cause, counsel began to exercise their peremptory challenges. When defense counsel raised an objection to the government's use of its peremptory strikes, the following Discussion occurred at the bench:
[DEFENSE COUNSEL]: Your Honor, I want to object to the Government's strike. Every strike has been someone of the same race as Mr. Jefferson.
[DEFENSE COUNSEL]: This gentleman [referring to a juror struck by the prosecutor] hasn't even spoken, to my recollection. It appears to be no pattern other than racial for the strikes.
THE COURT: You think that she's discriminating against Mr. --
[DEFENSE COUNSEL]: That's what I was alleging, Your Honor, yes.
THE COURT: Well, I'm sure she wouldn't do that intentionally.
[DEFENSE COUNSEL]: Well, intentionally or otherwise, he's still the one that gets harmed by it.
: Your Honor, I would note for the record that all of my strikes have not been of the same race, and I would also note that all of counsel's strikes have been of the same race. And if that would be an issue, I would raise it as to counsel. He has struck all white jurors.
THE COURT: Counsel may continue their strikes.
The bench conference ended at this point, and the voir dire resumed.
After jury selection had been completed and the jury had left for lunch, the trial court returned to the issue:
THE COURT: All right. Now, what was the you want to put on the record again the motion that you were trying to make in the court?
[DEFENSE COUNSEL]: Yes, sir. Thank you, Your Honor. Yes. All the strikes of the Government except one strike of Juror 661896 were strikes of people of the same race as Mr. Jefferson. I was unable to determine a pattern based on anything other than race for those strikes since most of those strikes were not people who commented during the voir dire process. And I was objecting to those strikes because appeared to be based on race.
THE COURT: All right. What does the Government have to say?
: First, Your Honor, the Government would note that all of its strikes were not of race . I didn't keep a count of how many were black or how many were white or how many were of whatever race because, frankly, that wasn't the basis of my strikes. I did note, however, that counsel himself struck all white jurors.
[DEFENSE COUNSEL]: I'd like to correct the record.
THE COURT: Just a minute.
: After he raised his issue. But I would note that the fact that they didn't speak doesn't necessarily mean that you struck that person because of race. There's a number of things, the way that a person looked at you, the way that a person might have kept looking at the defendant, which was certainly a basis for some of my strikes. Smiling, appearing to be too friendly with the defendant, or looking too hard at me.
I think most lawyers know that when you're picking a jury, it's just very subtle things that are transmitted to the lawyers in the course of picking the jury, and I just would like to state for the record that race wasn't the basis of me striking these individuals.
THE COURT: Okay. Well, I don't have to resolve that issue right now anyway, but we've got a jury so that may resolve everything. You may raise it ...