Appeal from the Superior Court of the District of Columbia (No. F-4436-01) (Hon. Frederick H. Weisberg, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before WAGNER, Chief Judge, GLICKMAN, Associate Judge, and STEADMAN,*fn1 Senior Judge.
Opinion for the court by Associate Judge GLICKMAN.
Opinion concurring in part and dissenting in part by Senior Judge STEADMAN at p. 30.
The exercise of peremptory challenges to discriminate against prospective jurors on the basis of race or gender is unconstitutional. Batson v. Kentucky, 476 U.S. 79, 88 (1986); J.E.B. v. Alabama, 511 U.S. 127, 145-46 (1994). Each type of discrimination offends the Equal Protection Clause of the Fourteenth Amendment and "the equal protection component of the Fifth Amendment's Due Process Clause." Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991) (citing Bolling v. Sharpe, 347 U.S. 497 (1954)). This case concerns a claim of discrimination in jury selection based on race and gender, as the prosecutor at appellant Leon Robinson's trial used a majority of his peremptory strikes to exclude black women from the jury.
Appellant asserts that he made a prima facie showing in the trial court of unconstitutional, purposeful discrimination by the prosecutor against the black women in the jury venire. His primary contention on appeal is that the trial court committed reversible error in overruling his objections without determining whether the prosecutor had acceptable justifications for removing these prospective jurors.*fn2
In ruling as it did, the trial court reasoned that race-and-gender combinations are not "suspect categories" for equal protection purposes, and that Batson and J.E.B. therefore do not prohibit discrimination in jury selection against black women or other groups defined by the intersection of racial and gender identity. In our view, the trial court erred in its application of equal protection principles. We hold that the purposeful exclusion of prospective jurors because they are black and female is discrimination on account of both race and gender in direct violation of Batson and J.E.B.
We further hold that appellant made a strong prima facie showing of such purposeful discrimination. The trial court therefore erred by not demanding a satisfactory explanation from the prosecutor for his strikes.
We decline to remand for a belated inquiry into the prosecutor's motives. In this case, an inquiry years after memories of jury selection have faded would be inherently unreliable and unfair to appellant, the party with the burden of proof. Accordingly, we reverse appellant's convictions. He is entitled to a new trial before a petit jury selected without the taint of unconstitutional discrimination.*fn3
Appellant was a seventeen-year-old black male tried in 2002 as an adult on charges of assault with intent to kill while armed with a shotgun and related offenses. It was undisputed that appellant shot S.M., also a young black male, moments after S.M. struck appellant's mother in the face with a metal pole and knocked her to the ground. The prosecution charged that appellant shot S.M. in an act of revenge as S.M. was fleeing the scene, i.e., without legal justification. Appellant claimed that he shot S.M. to protect his sister, whom S.M. was attacking with the same metal pole he had used against appellant's mother. Both appellant and his mother testified for the defense.
Before the commencement of voir dire, counsel and the court reviewed jury selection procedures and discussed the questions that would be posed to potential jurors to uncover possible biases or other grounds for exclusion. The questions approved by the court covered the usual areas, including prospective jurors' knowledge of the case, parties, and witnesses; their past jury and grand jury service; their personal involvement with law enforcement and attitudes toward police testimony; their experience with violent crime; their personal beliefs that might interfere with serving on the jury; and other relevant matters. The prosecutor stated that his "one area of concern" was with jurors who would sympathize unduly with a young male defendant.*fn4 To address this concern, the court agreed to ask jurors whether their feelings about "crimes committed by or against young men in this age group" would make it difficult for them to be fair.
Thereafter, the potential jurors assembled in the courtroom and were handed a written copy of the agreed-upon questions. The court asked each question out loud, instructing the jurors to circle the numbers of any questions to which they would respond in the affirmative. A total of fifty prospective jurors then were brought up to the bench one-by-one for follow-up inquiries directed to the questions they had marked. Of these fifty jurors, twelve had not circled any questions, and their interviews were perfunctory.
Based on the individual questioning at the bench, the court struck nine members of the venire for cause. The prosecutor moved to strike two additional jurors for cause -- Juror # 390, a white male, and Juror # 162, a white female -- but the court declined to do so.*fn5 The court placed four jurors (all male) who claimed hardship at the end of the list, where they would not be reached even if each party exercised all his peremptory strikes. This decision effectively left a panel of thirty-seven potential jurors -- nineteen males and eighteen females -- from which appellant's jury would be selected.
The first fourteen jurors on the list then were seated in the jury box. Twelve of these jurors were male, including the two in the seats designated for the alternate jurors. In selecting the twelve regular jurors, each side was entitled to exercise up to ten peremptory strikes, with the first strike in each round belonging to the prosecutor. Following each round, jurors struck from the jury box were replaced by the next jurors in line from the panel. The parties were free to strike jurors from outside the jury box, i.e., "from the panel," on the understanding that if both sides did so in the same round, the twelve jurors who were seated in the box at that time would become the jury. After the jury was selected, the parties had one additional strike apiece for the alternate jurors.
The prosecutor used his first strike against Juror # 390, the white male whom the court had declined to strike for cause. In the second round, the prosecutor struck Juror # 376, a black female, from the panel. This juror had circled no questions on her questionnaire and neither counsel had asked her anything at the bench.*fn6 In the third round, the prosecutor struck Juror # 876, who was also a black female. The prosecutor had not asked this juror any questions either.*fn7 In the fourth round, the prosecutor struck Juror # 898, again a black female. This was another juror who had circled no questions on her questionnaire. In her individual interview, the prosecutor had elicited only that she worked for the Army National Guard.*fn8
At this juncture, appellant's counsel interrupted the exercise of peremptory challenges to seek an acceptable explanation for the prosecutor's strikes:
I would just ask the government to proffer a reason [sic*fn9 ], gender neutral reason for the last three strikes. This is a panel that's probably two-thirds white, with maybe five or six black females and I believe two of them gave no answers to any questions posed by the court at all.
The court acknowledged that the prosecutor's last three strikes were of black females, and no one disputed that the panel had only five or six black females and was two-thirds white. Nonetheless, the court thought it "too soon" to discern a pattern that would establish "a prima facie case under Batson" and so denied counsel's request that the prosecutor be required to proffer a "neutral" reason for his strikes.
The exercise of peremptory challenges resumed. In rounds five and six, the prosecutor struck two white females, one from the jury box and one from the panel.*fn10 In the seventh round, the prosecutor struck Juror # 833, another black female, from the panel. She had circled no questions on her questionnaire and, at the bench, had revealed only that she worked as a cook.*fn11 In the next 9 round, round eight, the prosecutor struck a fifth black female juror (Juror # 371). She, too, had circled no questions on her answer sheet. At the bench, she had disclosed only that ...