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November 3, 1997

AARON WYNN, Defendant.

The opinion of the court was delivered by: LAMBERTH


 This matter comes before the court on defendant Aaron Wynn's Motion to Reinstate Selected Jury filed October 9, 1997. On September 3, 1997, the court conducted the voir dire of 45 prospective jurors and declared a mistrial after the court concluded that defense counsel exercised his peremptory strikes in a discriminatory manner. Presently, defendant's motion challenges this court's conclusion and seeks to have the originally selected jury reseated. Upon examination of the written submissions of the parties and the relevant law, defendant's motion is denied.

 I. Background

 Defendant Aaron Wynn, an African American male, is charged in a two count indictment with Unlawful Possession of a Firearm by a Convicted Felon (Count I) and Unlawful Possession of Ammunition by a Convicted Felon (Count II). On January 31, 1997, two white members of the Seventh District Metropolitan Police Department of the District of Columbia placed Wynn under arrest after observing him place a .32 caliber hand gun into the trunk of a vehicle.

 On September 3, 1997, the court conducted the voir dire of 45 prospective jurors for the defendant's trial. The court excused six jurors for cause during the initial voir dire questioning. After excusing these jurors, the court turned its attention to the exercise of peremptory challenges. Because the defense possessed ten peremptory challenges and the government possessed six challenges and there were to be twelve venire members seated as jurors, the first twenty-eight persons on the remaining list became the jury pool. Defense counsel then proceeded to strike every white venire member available to be seated on the jury--a number totaling eight of the nine white venire members. Following the exercise of peremptory strikes, the court seated the first twelve remaining jurors, leaving each side with one final peremptory strike for alternate jurors. Before either side could exercise its final peremptory challenge, the parties approached the bench and the government raised an objection to the manner in which defense counsel had exercised his peremptory challenges. The government asserted that defense counsel had used these challenges in a discriminatory manner by striking eight white jurors on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).

 After considering the number of white jurors struck by the defendant and the representations made by the government, as well as the arguments presented by the defense, the court concluded that the government had established a prima facie case under Batson and required the defense to articulate a non-discriminatory reason for each strike. The court found the explanations of defense counsel to be incredible and determined that defense counsel had engaged in a racially discriminatory exercise of peremptory strikes. The court then declared a mistrial and excused the jury.

 The defendant challenges this court's conclusion that defense counsel exercised the peremptory challenges in a discriminatory manner and seeks to have the originally selected jury reimpaneled.

 II. Analysis

 As a preliminary manner, this court is unaware of and defendant has not cited to any case law supporting the extraordinary relief of reseating the original jury sought in defendant's Motion to Reinstate Selected Jury. However, even assuming that such relief is available, defendant has not shown that this court's conclusion that defense counsel exercised the peremptory challenges in a discriminatory manner was erroneous. Thus, defendant's motion must be denied.

 A. Race and the Exercise of Peremptory Challenges

 As long ago as the late nineteenth century, the Supreme Court began to strike down laws and practices designed to exclude members of a particular race from service as jurors. In Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1880), the Court explained that the State denies an African American defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded. The Court held that a defendant had the right to be tried by a jury whose members were selected by nondiscriminatory criteria and took the first steps toward abolishing race as a consideration for jury service.

 Over thirty years ago, the Supreme Court first addressed the issue of whether the Equal Protection Clause was violated by a prosecutor's racially motivated exercise of peremptory challenges. Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965). In Swain, the Court recognized that the unfettered use of peremptory challenges bore a heavy burden on society as such challenges were traditionally "exercised on grounds normally thought irrelevant to legal proceedings . . . namely, the race, religion, nationality, occupation, or affiliations of people summoned for jury duty." Id. at 220. Accordingly, to reduce the costs associated with the unfettered use of these challenges, the Court in Swain held that a violation of equal protection could be established by proof that supported a reasonable inference that African Americans "are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial" and a showing that the peremptory system is being used to deny these individuals "the same right and opportunity to participate in the administration of justice enjoyed by the white population." Id. at 224.

 Although the Court in Swain took marked steps toward eliminating race-based decision-making in the selection of jurors, defendants relying on the holding in Swain faced a formidable burden due to the evidentiary standard articulated in that case. Under Swain, to establish a prima facie case of a violation of the Equal Protection Clause of the Constitution by a prosecutor's exercise of peremptory challenges, a defendant was required to show an inference of purposeful discrimination. Id. at 223. According to Swain, such a showing could only be made by the presentation of evidence establishing that the prosecution engaged in a repeated practice of racially motivated peremptory strikes in numerous cases.

 In the landmark case of Batson v. Kentucky, the Supreme Court expressly rejected the evidentiary formulation suggested by the Swain decision. Batson, 476 U.S. at 93. The Court stated that a criminal defendant was no longer required to prove "repeated striking of blacks over a number of cases" in order to establish a violation of the Equal Protection Clause. Id. at 92-93. Instead, the Court held that equal protection principles forbade a prosecutor from challenging potential jurors on the basis of their race or on the assumption that members of a certain racial group would be unable to be impartial in a given case. Id. at 89. As will be discussed below, the Court then proceeded to set out a three part test for evaluating claims that a prosecutor used peremptory challenges in a discriminatory manner.

 In a still more recent decision, Georgia v. McCollum, 505 U.S. 42, 120 L. Ed. 2d 33, 112 S. Ct. 2348 (1992), the Court expanded the scope of Batson to reach racially discriminatory peremptory challenges exercised by criminal defendants. In that case, the Court held that the government had standing to object to a defendant's racially discriminatory use of peremptory strikes.

 The Court's holding in McCollum not only completed the constitutional premise that racial considerations by either the prosecution or the defense have no place in the selection of a jury, but also provided a more thorough explanation of the rationale underlying this premise. When a court permits a party to discriminate against potential jurors on the basis of race, it becomes a vehicle facilitating discrimination by "those who are of the mind to discriminate" through the use of peremptory challenges. Batson, 476 U.S. at 96 (quoting Avery v. Georgia, 345 U.S. 559, 562, 97 L. Ed. 1244, 73 S. Ct. 891 (1953)). Quite simply, "racial discrimination in the selection of jurors 'casts doubt on the integrity of the judicial process' . . . and places the fairness of a criminal proceeding in doubt." Powers v. Ohio, 499 U.S. 400, 411, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991) (quoting Rose v. Mitchell, 443 U.S. 545, 556, 61 L. Ed. 2d 739, 99 S. Ct. 2993 (1979)). The Supreme Court has explained that the harm from discriminatory jury selection extends beyond that inflicted on the parties involved in a particular case and touches the entire community. McCollum, 505 U.S. at 49 (quoting Batson, 476 U.S. at 87). Indeed, selection procedures that purposefully exclude certain races from juries undermine public confidence in the judicial system. Id. "Just as public confidence in criminal justice is undermined by a conviction in a trial where racial discrimination has occurred in jury selection, so is public confidence undermined where a defendant, assisted by racially discriminatory peremptory strikes, obtains an acquittal." Id. 505 U.S. at 50.

 In light of these considerations, this court is mindful of the fact that the exercise of a peremptory strike is the exercise of a quintessential government power to be invoked under the careful control of the court. Thus, close scrutiny is to be employed at all times during the selection of a jury to ensure that expressions of racial prejudice find no place in the exercise of peremptory challenges. With these considerations in mind, this court may now properly turn its attention to the instant case.

 B. The Analytical Framework

 When a party alleges a discriminatory use of peremptory strikes-a Batson challenge--the court must conduct a three-part inquiry. First, the court must require the opponent of the challenge to make out a prima facie case of racial discrimination. Second, if the requisite showing is made, the burden shifts to the proponent of the strike to come forward with a race-neutral explanation for striking the juror in question. The second step of the inquiry does not require that the explanation be persuasive or even plausible. Purkett v. Elem, 514 U.S. 765, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995). The proffered reason need not be worthy of credence or related to the issues to be tried or to the prospective juror's ability to provide acceptable jury service. All that is required is that the reason be race-neutral. Id. at 767. Third, if the previous steps are met, the trial court must then decide whether the explanation is pretextual and whether the opponent of the strike has met its burden of proving purposeful discrimination. "The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett, 514 U.S. at 768.

 The Batson analysis, therefore, requires a finding of fact as to the discriminatory intent of the striking party. Hernandez v. New York, 500 U.S. 352, 364, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991). Indeed, "in the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed." Id. As the Supreme Court has noted, "there will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge." Id. Such findings of fact made by the trial court turn largely on credibility determinations and should be given great deference and reviewed for clear error, as the evaluation of a party's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province." Id. at 365 (quoting Wainwright v. Witt, 469 U.S. 412, 428, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985)).

 In the instant case, the three-part Batson inquiry clearly demonstrates that the defendant employed his peremptory strikes in a racially discriminatory manner.

 1. The Government's Prima Facie Case

 As part of the prima facie showing of a Batson violation, the government must demonstrate that the defendant exercised peremptory challenges to remove members of a particular racial group from the venire panel and that all the relevant circumstances raise an inference that the defendant exercised the challenges on account of race. Relevant circumstances may include a pattern of strikes against members of a particular racial group, as well as an attorney's statements and the types of questions submitted in the voir dire examination. As the Supreme Court in Batson explained:

The trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the [party's] questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the [party's] use of peremptory challenges creates a prima facie case of discrimination against black jurors.

 Batson, 476 U.S. at 96-97.

 In the instant case, the defendant, an African American, struck every possible white juror that could have been seated on the jury panel. Indeed, eight of the ten peremptory challenges used by defense counsel were exercised to strike whites from the jury panel even though whites comprised only a minority of the venire. R. 109. Such a pattern of strikes against members of a particular racial group is sufficient to establish a prima facie case under Batson. See, e.g., United States v. Stewart, 65 F.3d 918, 925 (11th Cir. 1995) (finding a prima facie case and stating "although no particular number of strikes against blacks automatically indicates the existence of a prima facie case, here the defendants struck seventy-five percent of the black venire members, which amounted to all but one of them"); United States v. Sowa, 34 F.3d 447, 452 (7th Cir. 1994) ("The government easily made its prima facie case that the peremptory challenges were motivated by race; each and every black venireperson was challenged."). See also Powers, 499 U.S. at 416 ("Racial identity between the defendant and the excused person . . . may provide one of the easier cases to establish both a prima facie case and a conclusive showing that wrongful discrimination has occurred.").

 2. Defendant's Facially Neutral Explanations

 Once a prima facie showing has been made that a party exercised its peremptory challenges in a discriminatory manner, a burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation for striking the juror in question. Indeed, the second step of the Batson process does not demand an explanation that is persuasive, or even plausible. "The issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez, 500 U.S. at 360. In the instant case, the defendant met this burden.

 Defense counsel proffered a race-neutral explanation for each peremptory strike made, as he rested the exercise of his peremptory strikes on either the age, occupation, relationship or connection to law enforcement personnel, or residence of each venire person struck. A party's explanation for a strike is deemed race-neutral if discriminatory intent is not inherent in the stated reasons. Purkett, 514 U.S. at 769. Thus, the explanations offered by the defendant for the strikes were sufficient to carry the burden of production under Batson, as it would have been improper for the court to probe into the plausibility of these explanations at this stage of the proceedings. Purkett, 514 U.S. at 768 ("[To require the explanation to be both race-neutral and plausible] violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.").

 3. Determining Pretext

 Once defense counsel has proffered a race-neutral explanation for each peremptory challenge at issue, the court is then instructed by Batson to determine whether the explanations supporting each peremptory strike are a pretext for the discriminatory exclusion of members of a particular racial group. Ultimately, "the trial judge determines, in light of all the facts and circumstances whether the [Batson challenger] has established the existence of purposeful discrimination." United States v. Jiminez, 983 F.2d 1020, 1023 (11th Cir. 1993). In this case, the record clearly demonstrates that the defense counsel exercised his peremptory challenges in a manner designed to exclude white venire members from the jury.

 a. Inconsistent Application of Selection Criteria

 When a party bases its peremptory challenges on certain characteristics such as age or employment status, pretext can be demonstrated by evidence that stricken panel members of one racial group are similarly situated or share the characteristics of a non-stricken panel member of a separate racial group. United States v. Jenkins, 52 F.3d 743, 747 (8th Cir. 1995); Davidson v. Harris, 30 F.3d 963, 965 (8th Cir. 1994) (noting otherwise neutral explanation for removal of black juror may be pretextual if stated reason also applies to white juror who is not removed); United States v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991) ("The force of a prosecutor's explanation for challenging a minority member of a venire is obviously weakened substantially by evidence that non-minority members to whom the same explanation applies were not challenged.").

 In the present case, defense counsel offered the explanations of age, employment, relationships with individuals in law enforcement, and residence as reasons for striking white venire members. An examination of the record reveals that these criteria were applied inconsistently to members of different races and demonstrates that the defense counsel's proffered reasons were a pretext for discriminatory elimination of white venire members from the jury.

 Defense counsel offered age as one of the explanations for striking Jurors 270, 614, and 642, ages 67, 60 and 56 respectively. Although age may be a valid basis for exercising a peremptory challenge, a review of those jurors passed over by the defense reveals that three African American jurors who were seated -- Jurors 198, 124, and 896, ages 71, 69, and 68 respectively -- were all over the age of the three who were struck allegedly because of their age.

 Defense counsel also struck Jurors 270, 614, and 139 because of their connections and relationships with individuals working in law enforcement. Again, this court notes that such an explanation may provide a legitimate explanation for the exercise of a peremptory challenge. However, a review of the record indicates that this criterion was inconsistently applied to members of different racial groups. Juror 663, a black male, worked as a reserve officer with the Third District Metropolitan Police Department. Juror 198, a black male, had a nephew who was a police officer and his daughter worked for the Federal Bureau of Investigation. Juror 672, a black female, had a brother who worked for the Metropolitan Police Department. Juror 162 had an uncle who was a retired member of the Metropolitan Police Department and neighbors employed by the United States Park Police and the United States Marshals Service. Finally, Juror 235, a black female, had a cousin who was a retired Metropolitan Police Officer. Despite their obvious connection to individuals employed in some capacity of law enforcement, defense counsel inexplicably failed to strike any of these members of the venire.

 Defense counsel also relied on the nature of certain jurors' employment as a basis for exercising peremptory challenges. In referring to certain employment positions as "a kind of a white collar type position . . .," defense counsel struck four white jurors on the basis of their employment. Juror 614 was struck because she was employed as an administrative aide at the Library of Congress, and Jurors 642, 430, and 154 were each struck because of their employment as business managers in the upper Northwest area of Washington, D.C. Review of those jurors passed over by the defense and seated in the jury box reveals that Juror 313, a black female, was also employed as a business manager and Juror 235 was employed as a personnel officer for the Council of the District of Columbia.

 Some circuits have observed that an explanation for a peremptory challenge, though weakened, is not automatically to be rejected because it applies to members of other racial groups who were not challenged. See, e.g., United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988); United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988); United States v. Lewis, 837 F.2d 415, 417 n.5 (9th Cir. 1988). In the instant case, however, such a gross pattern of inconsistent application of stated criteria leads this court to the only plausible conclusion-defense counsel exercised his peremptory challenges in a manner designed to exclude all white venire members from ultimately serving on the jury in this case.

 b. Disparate Impact of Defense Counsel's Selection Criteria

 Six of the eight white venire members struck by defense counsel either lived or were employed in the upper Northwest area of Washington, D.C. As defense counsel explained:

I think that's one of the factors among many, but I think that people that come from that area may not-regardless of race-haven't had as much contact with police officers, or at least I think their contacts with a police officer I think are different than people who live in Northeast or Southeast Washington. In my opinion or my experiences have not had encounters or many encounters where police officers are untruthful or where they harass them and things of that nature.

 R. at 111.

 It is clear that in this case, reliance on residence or employment in a certain location of Washington, D.C. as a criterion for striking potential jury members had a disparate impact on white members of the venire. When a party relies on criteria such as residence that ultimately results in the exclusion of a certain group from jury service, it is necessary to determine whether such criteria is, in fact, a proxy for race. As one court has stated:

If [a party's] explanation, generally applied, would have a disparate impact on a particular racial group, this fact should cause a trial judge to exercise special scrutiny during the third step of the Batson process to determine whether intentional discrimination, as a matter of fact, underlies [the party's] peremptory challenge.

 United States v. Uwaezhoke, 995 F.2d 388, 393 (3d Cir. 1993).

 Although residence may appear to be a facially neutral explanation for the exercise of a peremptory challenge, "where residence is utilized as a surrogate for racial stereotypes . . . its invocation runs afoul of the guarantees of equal protection." United States v. Bishop, 959 F.2d 820, 826 (9th Cir. 1992). A party may be permitted to rely on residence to justify the use of a peremptory challenge "where residence is utilized as a link connecting a specific juror to the facts of the case." Id. See also United States v. Briscoe, 896 F.2d 1476, 1488 (7th Cir. 1990) ("The government's explanation for its strike went well beyond a cursory statement that [the juror] resided [in a given area]."). However, as in this case, where residence of jurors has no cognizable connection to the facts of a particular case, it can only be stated that residence is nothing more than a proxy for race. Defense counsel failed to make any showing otherwise at trial.

 Thus, defendant has failed to establish that this court erred in its conclusion that defense counsel exercised its peremptory challenges in a discriminatory manner in violation of the Equal Protection Clause of the Constitution. Even though defense attorneys are charged with providing adequate representation for their clients, this representation must fall within the parameters of the Constitution. As the Supreme Court has stated, "neither the Sixth Amendment right nor the attorney-client privilege gives a criminal defendant the right to carry out through counsel an unlawful course of conduct." McCollum, 505 U.S. at 58.

 Race-based peremptory challenges have no place in the courtroom-whether made by prosecution or defense; whether made against black or white venire members. Once largely beyond the control of the trial court, the peremptory challenge now must be closely scrutinized to ensure that even the most subtle forms of racism are eliminated from the today's jury system. Not only does the Constitution demand such a result, the integrity of the judicial system and the public confidence in this system depend upon such a result.

 III. Conclusion

 For these reasons, defendant's Motion to Reinstate Selected Jury is DENIED.

 Appended hereto is the transcript of the bench conference discussion of the Batson challenge.

 Royce C. Lamberth

 United States District Judge

 Date: 11-3-97


 198, Juror Number 10.

 663, Juror Number 11.

 219, Juror Number 12.

 THE COURT: All right. If you'll wait just a moment, ladies and gentlemen. They get one additional peremptory each before we seat the two alternates.


 MS. EPPS: May the parties approach, Your Honor?


 (Discussion at the bench on the ...

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