Appeals from the Superior Court of the District of Columbia (F-3701-05 & F-3694-05) (Hon. Hiram Puig-Lugo, Trial Judge).
The opinion of the court was delivered by: Schwelb, Senior Judge
Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.
Opinion of the court by Senior Judge SCHWELB.
Dissenting opinion by Associate Judge BLACKBURNE-RIGSBY at p. 30.
Following a jury trial, Larry A. Gause and Karlepa Wilkey were convicted of armed robbery of a senior citizen and of several related weapons offenses. On appeal, appellants contend, as they did in the trial court, that the trial judge erred by denying Gause's request for discovery, joined by Wilkey, relating to jury-selection records and certain other jury information. The judge denied Gause's motion (the Jury Motion), as well as Gause's request for discovery, upon the ground that Gause had failed to present a prima facie case in support of his claim that the Superior Court's system for the selection of jurors violates the Fifth and Sixth Amendments and the District of Columbia Jury System Act (DCJSA), D.C. Code §§ 11-1901 et seq. (2001). In its brief to this court and at oral argument, the government, while urging affirmance on other grounds, has expressly agreed with appellants' position that no showing of a prima facie case was required.
Given the posture of the case as it has been presented to us, we agree that the Jury Motion was erroneously denied, at least on the grounds stated by the judge.*fn1 We remand the case to the trial court for reconsideration of appellants' request for discovery in conformity with the legal principles set forth in this opinion.
In his brief on appeal, Wilkey has presented several other claims. Gause has not joined in any of Wilkey's separate contentions, and none of them warrants reversal of Wilkey's conviction. See footnote 17, infra.
The government's evidence showed that on July 1, 2005, two men, who were later identified as Wilkey and Gause, robbed John Jeffers, then sixty-three years of age, at an ATM machine in southeast Washington, D.C. They took Jeffers' wallet, as well as the twenty dollar bill that he had withdrawn from the ATM. One of the robbers - apparently Wilkey - was armed with a sawed-off shotgun, which was wrapped in a newspaper. The robbers fled, and Jeffers called 911 from a nearby convenience store. An officer responded, and Jeffers provided a description of the robbers. The officer promptly relayed that description over a police radio channel.
A short time later, a second officer observed two men, who roughly fit the description provided by Jeffers, at a location approximately four blocks from the scene of the robbery. The officer, who was wearing a police badge, made eye contact with the men, and he began to alight from his unmarked police vehicle. The two men "took off running." The officer gave chase, but he lost sight of them as they were nearing a creek bed.
Several other officers established a perimeter around the creek bed, and they began to search for the robbers. The officers soon found Wilkey and Gause, who were attempting to hide and were lying side-by-side under some bushes. On or near the two men, the officers found a variety of articles of clothing which matched the clothing description provided by Jeffers. Although neither robber was wearing a certain distinctive T-shirt described by Jeffers, that T-shirt was recovered by the police in the immediate area. The officers also found Jeffers' wallet, the contents of which - including a credit card, a social security card, and other identification - were scattered on the ground nearby. The officers further recovered a sawed-off shotgun. Finally, in Gause's pocket, the police found the victim's "lucky" two dollar bill. At a show-up shortly after the robbers' apprehension, Jeffers positively identified Wilkey as "the guy in my face" at the time of the robbery, and he said that Gause "looked like" the other robber, although he was wearing different clothes. Jeffers then stated: "But you know, I'm pretty sure he [Gause] is the guy . . . that picked up my money."*fn2
A few days after the robbery, while both Wilkey and Gause were being detained in jail pending trial, Jeffers called the police and reported that, while he was in his car and stopped at a traffic light, he saw the two men who had robbed him walk in front of his vehicle. He said that one of the men pointed at him and that he (Jeffers) felt threatened. A defense investigator testified that he visited Jeffers at his home for 2 1/2 hours, and that Jeffers signed a statement in which he expressed certainty that the two men who walked in front of his car were the robbers. Although this denouement put the government in the unusual position of arguing that a complainant's identification at a supposed second (or really third) sighting was unreliable, the jury found both defendants guilty of all charges. Each man was sentenced to serve a substantial prison term. These consolidated appeals followed.
The principal question presented in these appeals is whether the trial judge correctly denied appellants' Jury Motion and their request for discovery because, in the judge's view, Gause had failed to present, in support of his motion, a prima facie case of a violation of the Constitution or of the DCJSA. Although many discovery issues are confided to the trial court's sound discretion, see, e.g., Beaner v. United States, 845 A.2d 525, 536 (D.C. 2004); Gibson v. United States, 566 A.2d 473, 478 (D.C. 1989) (citations omitted) , the dispositive question here - the standard under which that court should determine whether the appellants were entitled to discovery of the requested jury materials - is one of law, and we review the trial judge's decision de novo.
In his Jury Motion, Gause (subsequently joined by Wilkey) claimed that the Superior Court system for selecting juries "produces jury venires that do not reflect a fair cross-section of the community and systematically excludes African Americans," in violation of the Fifth and Sixth Amendments and the DCJSA. In support of his motion, Gause filed, inter alia, an affidavit by Richard Seltzer, a Professor of Political Science at Howard University who specializes in statistical analysis of jury composition. Based on the data available to him, including information regarding venires in several other cases, Dr. Seltzer stated that the average percentage of black jurors in the Superior Court venires observed by him and his investigators on Mondays was 52.2%, and that in one Monday case*fn3 the percentage of black jurors was only 22.8%. According to Dr. Seltzer, the general population of the District was 60% black,*fn4 and the disparities that he found on Mondays - 7.8% and 37.2% - were statistically significant. Based on his preliminary study, Dr. Seltzer concluded that some jury venires are not representative either of the community or of the jury wheel. He explained that he needed access to the jury records to determine whether these disparities were representative of Superior Court venires generally and to identify the source or sources of any disparities.
In further support of the Jury Motion, Gause presented observations made by Honorable Henry F. Greene, the presiding judge in the Gooden case. Judge Greene stated that he had been advised by two court officials familiar with jury selection procedures that it was the practice of the Juror Office to "let any juror who is summoned for jury service and for whom [the initially scheduled] date is inconvenient to reschedule at least once, without even having to get the approval of a judge. . . . [I]t has become the overwhelming choice of jurors who wish to reschedule to reschedule for Mondays." The judge was also informed that some socio-economic groups, apparently including professionals, a high percentage of whom were white, "have a higher rate of rescheduling than other jurors," which may have resulted in a racial disparity among the jurors reporting on Mondays.
In his motion, filed (as we have noted) six days before trial, with a weekend in between, see footnote 1, supra, Gause focused primarily on the alleged under-representation of black jurors on Mondays. He asked the trial judge to stay the trial, to set a hearing for the substantive jury motion, and to order the Clerk of the Superior Court to provide to his counsel, for the preceding five years, or for whatever shorter period as to which the requested materials were available, (a) "all documents and computer tapes" relating to the master jury wheel, (b) "all documents and computer tapes" containing personal information about all persons summoned for jury service, and (c) "all documents relating to the development of the current jury system and plan" Gause also requested the court to order the Clerk to make available for interview by his counsel all jury office officials and staff and the staff of any agency designated by the Jury Plan to provide names to the jury office for inclusion in the master jury wheel.
When the case was called for trial, the judge orally denied the Jury Motion without hearing from the government. Without objection, the judge treated the motion as having raised solely a claim concerning the racial makeup of jury panels on Mondays. Gause claimed that these panels were disproportionately white because "professionals, who tend to be white, ask to be deferred," and that they are then given Mondays to come back to court. The judge ruled that evidence as to Monday venires was not sufficient to demonstrate the existence of a problem with the jury selection process as a whole, and that in any event, the proffered statistical disparity did not establish a prima facie case of "substantial under-representation." Although Gause's attorney cited a number of federal authorities, including Test v. United States, 420 U.S. 28 (1975) and United States v. Royal, 100 F.3d 1019 (1st Cir. 1996), for the proposition that Gause's right to inspect the records was "unqualified" and that no showing of likelihood of success was required, the judge discerned a difference between "prima facie case and likelihood of success," and he explained that "I'm ruling on prima facie case. You haven't made it out." Because the judge denied the Jury Motion on the merits, the request for discovery in support of that motion became moot.
On the day (a Tuesday) following the judge's denial of the Jury Motion, fourteen jurors were selected, two of whom were to serve as alternates. Eight of the fourteen (57.1%) were black; six of them (42.9%) were white. The percentage of black persons on the jury was thus slightly above the percentage of black adult citizens of the District (less than 56%, as estimated by Judge Boasberg in his opinion in the Powell case.)
C. Substantive Legal Principles
In challenging the composition of the jury pool from which their petit jury was ultimately selected, appellants invoke their rights under the Sixth Amendment, the Fifth Amendment, and the DCJSA. Before addressing the appellants' claimed right to discovery which is at issue in these appeals, we briefly outline the substantive principles which provide context for this dispute.
"'[T]he selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.'" Diggs v. United States, 906 A.2d 290, 296 (D.C. 2006) (quoting Taylor v. Louisiana, 419 U.S. 522, 528 (1975)). "[T]he jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Taylor, 419 U.S. at 538. However, the requirement of a fair cross-section does not extend to the composition of individual juries. Id. at 538; see also Diggs, 906 A.2d at 296.*fn5
To establish "substantial under-representation that violates the Fifth Amendment, the defendant must show that (1) the underrepresented group is an identifiable, distinct class; (2) the group has been substantially underrepresented on juries in relation to its representation in the population; and (3) the jury system at question is susceptible of abuse or not racially neutral.'" Obregon v. United States, 423 A.2d 200, 207 (D.C. 1980) (quoting Castaneda v. Partida, 430 U.S. 482, 494 (1977)). "Although the test appears to be very similar to the fair cross-section test [under the Sixth Amendment], there is one critical difference: in an equal protection challenge, the defendant must present evidence of a discriminatory intent." Id. (citing Duren, 439 U.S. at 368 n.26). "[O]nce the defendant has made out a prima facie case, the government bears the burden of showing that 'racially neutral selection criteria have produced' the unequal representation." Id. (citations omitted).
These constitutional protections are supplemented by statutory enactments, both at the federal level and in the District of Columbia. Prior to 1986, federal law provided for a "single jury selection system" for the federal and District of Columbia courts, namely, the Federal Jury Selection and Service Act (FJSSA), 28 U.S.C. §§ 1861 et seq. In 1986, Congress enacted the DCJSA, D.C. Code §§ 11-1901 et seq., "to provide for the ...