June 12, 2019
from the Superior Court of the District of Columbia
(CF1-5953-15) Hon. José M. López, Trial Judge
Pavlovic, Public Defender Service, with whom Samia Fam and
Jaclyn Frankfurt, Public Defender Service, were on the brief,
Smith, Assistant United States Attorney, with whom Jessie K.
Liu, United States Attorney, and Elizabeth Trosman and
Michelle Jackson, Assistant United States Attorneys, were on
the brief, for appellee.
Beckwith and McLeese, Associate Judges, and Nebeker, Senior
BECKWITH, ASSOCIATE JUDGE
jury selection at appellant Mark Beasley's criminal
trial, the government used eight of its ten peremptory
strikes against black jurors. Mr. Beasley appeals his
subsequent convictions, arguing that the trial court erred in
determining that he failed to make out a prima facie case of
discriminatory intent based on the government's use of
peremptory strikes. See Batson v. Kentucky, 476 U.S.
79 (1986). We agree and therefore reverse Mr. Beasley's
Beasley was charged with murder, assault, and gun-related
offenses stemming from an incident outside a nightclub. At
the start of trial, the court indicated that it would be
using the "Arizona method" for picking jurors,
meaning that, rather than implementing peremptory challenges
round by round, each side would list all ten of its
peremptory challenges at once and then exchange lists. After the
court reviewed each list, the parties would repeat the
process for the four alternate seats.
questioning lasted three days and resulted in a venire of
forty-eight qualified potential jurors. Sixteen of those
potential jurors, or 33% of the venire, were black. When the
parties began exercising peremptory challenges, the
government used eight of its ten challenges to strike black
jurors and used another challenge to strike a Latino
juror. After reviewing the strike sheets, defense
counsel raised a challenge pursuant to Batson v.
Kentucky, 476 U.S. at 89, in which the U.S. Supreme
Court decided that in a criminal case, the use of a
peremptory challenge to strike a prospective juror solely on
the basis of race violated the Equal Protection Clause of the
U.S. Constitution. The court completed the process for the
alternate jurors and then turned to Mr. Beasley's
Beasley argued that the government used nine of its
peremptory strikes "for people of suspect
classifications, eight African American and one Latino."
He asserted that "[e]ight African Americans based on my
calculations is roughly 50 percent of the African Americans
who are in the entire venire" and "100 percent of
the Latinos." In response, the prosecutor acknowledged
having struck eight black jurors, summarized the racial
breakdown of Mr. Beasley's own peremptory strikes,
noted that the defense struck two of the same black jurors:
"So if you take away the very two that they struck, we
struck . . . six black people, three white people, and one
Latino individual." Defense counsel reiterated that the
government "used 90 percent of their preemptory [sic]
challenges to strike people of color" and argued,
"I think that's all I need to do to establish a
prima facie case regardless of whether I struck them or
not." After hearing further arguments from both sides,
the court asked the prosecutor how many black jurors it
struck, "not including the ones that overlap." The
prosecutor responded "six, excluding the two that
overlap." The court then stated that Mr. Beasley had not
established a prima facie case and that the court would not
"pursue it any further." Mr. Beasley was
subsequently convicted on all counts.
appeal, Mr. Beasley contends that the trial court erred in
concluding that he had not established a prima facie case of
discriminatory purpose under Batson. Relying
primarily upon our recent decision in Haney v. United
States, 206 A.3d 854 (D.C. 2019)-which concluded that a
sizable statistical disparity in the government's use of
peremptory strikes alone could establish a prima facie case
of discrimination, see id. at 861-Mr. Beasley argues
that the disparity here was more glaring than that in
Haney. The government counters that numbers alone
are not enough to satisfy the first step of
Batson and highlights what it views as
Haney's very different circumstances making it
inapplicable to this case.
attorney may not use peremptory challenges to engage in
purposeful discrimination on the basis of race, gender, or
both. See Batson, 476 U.S. at 88 (race); J.E.B.
v. Alabama ex rel. T.B., 511 U.S. 127, 143-44 (1994)
(gender); (Edward) Robinson v. United
States, 890 A.2d 674, 680-81 (D.C. 2006) (race and
gender). The Supreme Court has devised a three-part framework
for analyzing a claim of discrimination in violation of
Batson and its progeny. First, the
defendant has the burden to establish a prima facie
case by showing that "the totality of the relevant facts
gives rise to an inference of discriminatory purpose."
Johnson v. California, 545 U.S. 162, 168 (2005). If
such a showing is made, the burden then shifts to the
government to offer race-neutral bases for the strikes.
Id. The trial court then "must determine
whether the prosecutor's stated reasons were the actual
reasons or instead were a pretext for discrimination."
Flowers v. Mississippi, __U.S. __, 139 S.Ct. 2228,
2241, 204 L.Ed.2d 638 (2019). At step one-the facet of the
Batson analysis at issue here-"the ...