Appeals from the Superior Court of the District of Columbia (FEL3701-05 & FEL3694-05) (Hon. Hiram E. Puig-Lugo, Trial Judge).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Argued En Banc September 15, 2009
Before WASHINGTON, Chief Judge,and RUIZ, REID, GLICKMAN, KRAMER, BLACKBURNE-RIGSBY, THOMPSON, and OBERLY, Associate Judges, and SCHWELB, Senior Judge.
Opinion for the court by Associate Judge BLACKBURNE-RIGSBY, joined by RUIZ, REID, GLICKMAN, and OBERLY, Associate Judges.
Dissenting opinion by Senior Judge SCHWELB, joined by WASHINGTON, Chief Judge, and KRAMER and THOMPSON, Associate Judges, at page 23.
In this case, we convened en bancto consider whether the District of Columbia Jury System Act ("DCJSA"),*fn1 which includes a statutory right to inspect court records used in connection with the jury selection process, requires a predicate showing that the requested materials will ultimately yield evidence of a "substantial failure to comply with" the DCJSA. We decline to impose a threshold showing requirement, because to do so would undermine the DCJSA's stated purpose by creating an unnecessary hurdle for litigants seeking discovery of jury pool information in connection with a challenge to the fairness of the jury selection process. We conclude that the DCJSA neither imposes, nor requires this court to impose, such a threshold showing requirement and we therefore reverse and remand for further proceedings consistent with this opinion.
In declining to impose a threshold showing requirement, we begin our analysis by comparing the DCJSA with its predecessor, the federal Jury Selection and Service Act ("FJSSA"), 28 U.S.C. §§ 1861-1878 (1978). In Test v. United States, 420 U.S. 28, 30 (1975) (per curiam), the Supreme Court analyzed the FJSSA's statutory provisions, as well as its stated purpose, and concluded that the FJSSA confers an "unqualified right" to discovery under the statute. Next, we consider differences between the FJSSA and the DCJSA; although the statutes are nearly identical in their stated purposes, they differ in their structure and organization. There is one difference in particular that we acknowledge and analyze - the absence in the DCJSA of explicit language stating that litigants may inspect jury records. But we conclude that this difference alone, without any clear legislative history or intent, is insufficient to accord less protection to District of Columbia litigants under the DCJSA than was accorded to them under the FJSSA, especially given the virtually identical purposes of both statutes. Finally, we make clear that trial judges retain important discretion over the scope and timing of discovery pursuant to the DCJSA.
I. Background and Procedural History
Following a jury trial in 2005, appellants Larry A. Gause and Karlepa Wilkey were convicted of armed robbery of a senior citizen and of several related weapons offenses. In their appeal, appellants contended that the trial judge erred by denying Gause's pretrial request (joined by Wilkey) for discovery, pursuant to the DCJSA, relating to jury selection records. As described more fully in Gause v. United States, 959 A.2d 671, 675-76 (D.C. 2008) (Gause I), appellants' motion, which included substantial, albeit preliminary, expert analysis, alleged 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."*fn2 The trial judge denied Gause's motion (the "Jury Motion"), including Gause's request for discovery,*fn3 based upon his finding that Gause had failed to establish a prima facie case that the Superior Court's system for the selection of jurors violates the Fifth and Sixth Amendments to the United States Constitution and the DCJSA.
A division of this court reversed the trial court, with one judge dissenting. See Gause I, supra, 959 A.2d at 688. Rejecting the "prima facie case" standard imposed by the trial court, the Gause I majority instead fashioned a "reasonable belief" standard whereby a litigant's access to nonpublic jury information would be conditioned upon making "a particularized showing supporting a reasonable belief that underrepresentation in the jury pool or the venire exists as the result of practices of systematic exclusion." Id. at 684-85, 687 (adopting standard of People v. Jackson, 920 P.2d 1254, 1268 (Cal. 1996)). Appellants thereafter filed a petition for rehearing en banc. We granted the petition and vacated the prior decision of the court. See 968 A.2d at 1032.
Whether the DCJSA imposes a threshold showing requirement presents a matter of statutory construction, which involves a "clear question of law" that we review de novo. District of Columbia v. Morrissey, 668 A.2d 792, 796 (D.C. 1995).
From 1968 until 1986, the jury selection system in the District of Columbia was governed by the FJSSA. Then, in 1986, Congress enacted the DCJSA "to provide for the establishment of an independent jury system for the District of Columbia Superior Court . . . ." S. REP. NO. 99-473, at 1 (1986). While there are some obvious differences in the statutes, there are also some key similarities. In drafting the DCJSA, for example, Congress adopted the FJSSA's "Declaration of policy" nearly verbatim, including the specific guarantee that "all litigants entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section" of the community. Compare 28 U.S.C. § 1861 with D.C. Code § 11-1901. Additionally, many provisions in the DCJSA closely follow corresponding provisions in the FJSSA. Both statutes, for example, mandate a jury selection process that is free from unlawful discrimination. In a section entitled "Discrimination prohibited," the FJSSA states that "[n]o citizen shall be excluded from service as a grand or petit juror . . . on account of race, color, religion, sex, national origin, or economic status." 28 U.S.C. § 1862 (1980). The DCJSA has a similar section entitled "Prohibition of discrimination," which provides that "[a] citizen of the District of Columbia may not be excluded or disqualified from jury service as a grand or petit juror in the District of Columbia on account of race, color, religion, sex, national origin, ancestry, economic status, marital status, age, or (except as provided in this chapter) physical handicap." D.C. Code § 11-1903. Both statutes also require the adoption and implementation of a jury system plan for the random selection of jurors.*fn4 Compare 28 U.S.C. § 1863 (a) (1992) with D.C. Code § 11-1904 (a).*fn5 And, as will be apparent, both statutes include provisions for litigants who wish to challenge the composition of juries and jury venires for violation of the statute's fair cross section requirement.*fn6
Importantly, and of particular relevance here, both the FJSSA and the DCJSA expressly contemplate that litigants who wish to challenge the jury selection process will have access to nonpublic records even before any written motion is filed. The FJSSA, under the heading of "Challenging compliance with selection procedures,"states that in criminal cases, within specified time limits, "the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury." 28 U.S.C. § 1867 (a). It further provides that upon the filing of such a motion:
the moving party shall be entitled to present in support of such motion the testimony of the jury commission[er] or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence.
28 U.S.C. § 1867 (d). The corresponding provision in the DCJSA, under the same heading of "Challenging compliance with selection procedures," provides:
A party may challenge the composition of a jury by a motion for appropriate relief. A challenge shall be brought and decided before any individual juror is examined, unless the Court orders otherwise. The motion shall be in writing, supported by affidavit, and shall specify the facts constituting the grounds for the challenge. If the Court so determines, the motion may be decided on the basis of the affidavits filed with the challenge. If the Court orders trial of the challenge, witnesses may be examined on oath by the Court and may be so examined by either party.
The FJSSA also includes a provision - still under the same heading, "Challenging compliance with selection procedures" - that relates to a litigant's ability to seek discovery: "The parties in a case shall be allowed to inspect, reproduce, and copy such records or papers at all reasonable times during the preparation and pendency of such a motion." 28 U.S.C. § 1867 (f). There is no identical sentence in the DCJSA,*fn7 but the DCJSA does provide, in D.C. Code § 11-1914 (b), that "[t]he contents of any records or lists used in connection with the selection process shall not be disclosed, except in connection with the preparation or presentation of a motion under § 11-1910, or until all individuals selected to serve as grand or petit jurors from such lists have been discharged." (emphasis added).
As noted above, the Supreme Court has had occasion to interpret the FJSSA, and the Court concluded that the DCJSA's federal predecessor confers "essentially an unqualified right to inspect jury lists." Test, supra, 420 U.S. at 30. The Court reasoned that the "unqualified right to inspection is required not only by the plain text of the statute, but also by the statute's overall purpose of insuring 'grand and petit juries selected at random from a fair cross section of the community.'" Id. (quoting 28 U.S.C. § 1861).*fn8 The Court explained that the FJSSA's statutory provisions guarantee "access in order to aid parties in the 'preparation' of motions challenging jury-selection procedures" because "without inspection, a party almost invariably would be unable to determine whether he has a ...