An All-White Jury
The District of Columbia Court of Appeals will hear oral argument en banc this Thursday reviewing a unanimous opinion rejecting a Batson challenge to an all-white jury in a case where a Black man had been charged with first degree sexual abuse of a white woman.
From the division opinion
Mr. Smith’s Batson challenge relates to the first day of jury selection. After the court struck a series of jurors for cause, 37 prospective jurors remained, consisting of 31 white jurors, 4 Black jurors, one Hispanic juror, and one Asian juror. The government and the defense were each allotted ten peremptory strikes and one strike for selecting alternates. In total, defense counsel struck ten white jurors and passed on an eleventh strike. The prosecutor struck all six of the non-white jurors, including one Black juror who would have been an alternate. After the conclusion of peremptory strikes, defense counsel raised a Batson challenge, contending that the government had “eliminated every black person from the jury as well as Asian and Hispanic.” Although Mr. Smith’s initial Batson challenge included the Asian and Hispanic jurors, the trial court queried whether the defense’s prima facie case required “group[ing] the one Hispanic and the one Asian American” with the four struck Black jurors “to come up with six” struck jurors. In response, defense counsel acceded that the Batson challenge would stand “with just the four individuals” and stated that “[t]he number is four because that … was the number of … black individuals in this jury pool.”
The prosecutor’s strike justifications
we are reticent to conclude that the trial court clearly erred in crediting the government’s rationale when defense counsel made no real effort to rebut it. See Smith , 966 A.2d at 386. Because the burden of proof remained on Mr. Smith throughout the Batson inquiry, his counsel was required to “meaningfully [rebut] the prosecution’s race-neutral reasons for striking” Jurors 238 and 254 by (1) “point[ing] out that the prosecutor’s claims about the particular juror are false”; (2) “point[ing] out that although the prosecutor’s claims about an excluded juror are true, similar claims can be made about non-excluded jurors who are not minorities, which should raise the suspicion of bad faith”; or (3) “argu[ing] that claims about the juror, although true, are so irrational as a reason for striking a juror that they might be pretexts for some undisclosed discriminatory reason.” Id. at 387 (quoting Robinson , 878 A.2d at 1290 ). Mr. Smith’s defense counsel did little of the foregoing. He neither defended the ability of Jurors 238 and 254 to hear scientific evidence nor sought to compare those jurors with the white nanny, to whom the government had no objection. At most, defense counsel offered a conclusory assertion that the prosecutor’s reasoning was “[in]effective … to withstand [the Batson ] challenge.” See id. (holding that the defendant could not meet his burden of proof “by offering only ‘conclusory assertions’ that the prosecutor’s reasons appeared to be disingenuous” (quoting Nelson v. United States , 649 A.2d 301, 311 (D.C. 1994) )). Without more from Mr. Smith’s counsel to undermine the basis for the government’s strikes, we cannot say that the trial court clearly erred in crediting the government’s stated race-neutral reasons and thus in rejecting Mr. Smith’s Batson challenge to the striking of Jurors 238 and 254.
The briefs for the argument are linked here.
From the amicus brief of the NAACP Legal Defense & Education Fund
On December 4, 2012, four Black Americans dutifully reported for jury service at the Superior Court of the District of Columbia. They were assigned to a panel in the case of a Black man named Glenn Smith, who was charged with sexually assaulting a white woman. With little information about these Black prospective jurors, and without asking any questions to learn more, the prosecutor struck them. The prosecutor also struck the only two other prospective jurors of color. The result was an all-white jury in a then-majority-Black city.
As to the purported basis to strike
Ironically, Juror 683 worked for the D.C. Government but, according to the prosecutor, lacked the intellectual capacity to serve as a juror in the D.C. courts.
When defense counsel responded, “saying that they were too unintelligent to serve on a jury [isn’t] an effective reason to withstand that challenge,” Tr. at 131, the trial court said, “that’s a race-neutral reason,” and found it “credible” because “[t]he Government [has] assured that this was not based on race.” Tr. at 132, 135. At no time during the Batson challenge did the trial court pose questions to the prosecutor about the intelligence-based justifications, partake in any analysis other than briefly citing Juror 683’s answer to the confusing compound question, evaluate the strikes in connection with each other or the context of the case, address (much less substantiate) the clothing-based justification, or express concern that the prosecutor struck 100% of the Black prospective jurors. Instead, the court admonished that it was not required “to guarantee a certain number of blacks that would be on the jury.” Tr. at 135. Thus, the trial court failed to conduct a “rigorous evaluation” and “probing inquiry” of the prosecutor’s purported race-neutral reasons, much less apply the “heightened scrutiny” that was required in a racially charged case
Associate Judge AliKhan, who authored the division opinion, is now a federal district judge. (Mike Frisch)