stating that it “has never been the law in the District of Columbia” that a “claim of self-defense is defeated only if the defendant returns to his adversary with the intent to provoke violence, and then engages in behavior adequate to provoke the level of violence displayed by his adversary”; explaining that “self-defense is not available to a defendant who deliberately puts himself in a position where he has reason to believe that his presence will provoke trouble, even if his purpose in putting himself in that position was benign”
How later courts described this case
- stating that it “has never been the law in the District of Columbia” that a “claim of self-defense is defeated only if the defendant returns to his adversary with the intent to provoke violence, and then engages in behavior adequate to provoke the level of violence displayed by his adversary”; explaining that “self-defense is not available to a defendant who deliberately puts himself in a position where he has reason to believe that his presence will provoke trouble, even if his purpose in putting himself in that position was benign”
- concluding that an obstruction of justice count was “logically related” to the underlying substantive charges against the appellant’s co-defendants
- finding plain error review inappropriate where “counsel objected twice ... and clearly stated the grounds for her objection both times”
- holding that the jury’s differing verdicts as to co-defendants established the ability to assess the charges against each independently
Written by the judges who cited it.
The opinion
FARRELL, Associate Judge,
concurring:
Under our recent decisions in Young and Graham, both cited by Judge Terry, appellants can obtain no relief from the claimed impairment of their right to exercise a peremptory challenge without showing that an actually biased juror was seated as a result. True, Young and Graham both differed factually from this case in that the alleged interference with peremptories arose there only mid-trial (Graham) or post-trial (Young) and in both cases resulted from a juror’s wrongdoing, not — as here — the court’s own putative mis-structuring of the process for peremptory challenges. But both decisions, on the strength of their reading of Lyons v. United States, 683 A.2d 1066 (D.C.1996) (en bane), were explicit in holding that impairment of the right to exercise a peremptory challenge does not justify reversal unless an actually biased juror was seated as a consequence. Young, 694 A.2d at 897 n. 7; Graham, 703 A.2d at 830 n. 6. Those decisions, of course, bind this division.
As an original matter, however, the issue of what showing of prejudice entitles a defendant to relief from an erroneous impairment of the right to exercise peremptories is a difficult one. There seem to be three possibilities: per se reversal without inquiry into prejudice (ie., prejudice presumed); reversal only if, without the impairment, the composition of the jury might have differed in any way; and reversal only upon (i.e., harmless enor unless there has been) a showing of actual bias. Appellants argue for the second rule, but in a great many, if not most, applications that rule will not differ from the first, since the government will be unable to show that the same twelve jurors would have sat regardless of the violation. Thus in practical terms the choice of standard for reversal is binary: “[T]he error is always harmless [absent a showing of actual bias, in which case the Constitution, not the right to perempto-ries, dictates reversal] or it is never harmless. There is no practical middle ground.” United States v. Annigoni, 96 F.3d 1132, 1150 (9th Cir.1996) (en banc) (Kozinski, J., dissenting) (emphases in original).
I find it difficult to answer the reasoning of the Annigoni majority which led it to conclude that “the erroneous denial of a right of peremptory challenge ... is simply not amenable to harmless-error analysis.” Id. at 1144 ; see also, e.g., United States v. Underwood, 122 F.3d 389, 392 (7th Cir.1997); United States v. Taylor, 92 F.3d 1313, 1325 (2d Cir.1996); Kirk v. Raymark Industries, Inc., 61 F.3d 147, 162 (3d Cir.1995). But the distinct unpalatability of an automatic rever *956 sal rule for a non-constitutional violation, see Annigoni 96 F.3d at 1149 (Leavy, J., dissenting), as well as the important but enigmatic bearing of Ross v. Oklahoma on the question, 487 U.S. 81 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988), and the split of lower-court authority, see, e.g., 47 Am.JuR.2d Jury § 237, at 913, make this recurrent issue an attractive candidate for Supreme Court review.
Were this court to reconsider the issue en banc, I would urge "that we also re-examine what constitutes a denial or impairment of “the effective exercise” of the right to peremptory challenges, Williams v. United States, 552 A.2d 510, 512 (D.C.1988), specifically, whether the jury selection procedure used in this case and Butler v. United States, 377 A.2d 54 (D.C.1977), was a deprivation of the right so as to raise the difficult issue of remedy. The court in Underwood, supra, while reaffirming “a broad rule of automatic reversal” for impairment of the peremptory challenge right, recognized the need to limit the operation of the rule by “narrowly defining ‘denial or impairment’ ” of the right. 122 F.3d at 392 -93 n. 3. In keeping with a line of decisions by the United States Court of Appeals for the Second Circuit, I have considerable doubt whether the trial court’s particular use here of the “jury box” system for selecting the jury failed to “adequately protect! ] [appellants’] rights.” United States v. Thompson, 76 F.3d 442, 451 (2d Cir.1996).
The defense received and was able to use twelve peremptory challenges, two more than Rule 24 requires. 1 Also in conformity with the rule, the prosecution exercised its strikes first in each round. Only in the twelfth round, because of the trial judge’s procedure of not allowing strikes into the venire and of seating a juror in the box only after each side had struck in a round, were the defendants unable to use their last strike against the replacement for the prosecutor’s final strike. I agree with the implication of Butler, supra, that the judge’s procedure was unnecessarily inflexible, 2 but the question is whether the judge abused his discretion in employing it.
The focus of this ease is not on the jurors seated in the box after the challenges for cause, but on the replacements for the jurors the prosecution struck using peremptories. Unquestionably, “when the ‘jury box’ system is used, a litigant [must] be given some reasonable opportunity to challenge some replacements.” United States v. Blouin, 666 F.2d 796, 799 (2d Cir.1981). Hence, a procedure that “forced [a defendant] to use all of his allotted challenges against a panel that included only half of the eventual members of his jury” would surely be an abuse of discretion. Id. at 799-800 (citing the court’s prior reversal in Carr v. Watts, 597 F.2d 830 (2d Cir.1979)). Here, however, the defendants were able to use their challenges with respect to every replacement but two, the replacement for the juror last struck by the defense (about which appellants do not complain) and the replacement for the prosecution’s last strike. In United States v. Keegan, 141 F.2d 248 (2d Cir.1944), rev’d on other grounds, 325 U.S. 478 , 65 S.Ct. 1203 , 89 L.Ed. 1745 (1945), the defendant had similarly been “obliged to exercise his last challenge before knowing the identity of two jurors— the person who replaced his last challenge and the person who replaced the Government’s last challenge.” Blouin, 666 F.2d at 799 (summarizing Keegan). In Blouin the defendant likewise “was obliged to exercise his last challenge before knowing the identity of two members,” the persons who replaced his last two challenges. Id. Yet in both cases the court of appeals rejected the claim that the procedure used was an abuse of discretion, the Blouin court holding that the procedure in that case “afforded Blouin a reasonable opportunity to challenge replacements and was well within the allowable discretion of a District Court.” Id. at 800 . See also United States v. Thompson, 76 F.3d at 451-52 (defendant’s right to peremptories adequately protected where he “had the oppor *957 tunity to consider 11 of the 12 jurors before exercising his last peremptory challenge”).
In light of these decisions, were the full court to vote to reconsider the remedy issue, I would also vote to reconsider Butler, supra, which the government concedes is controlling on whether the trial court’s procedure here was erroneous or an abuse of discretion. In my view, an over-readiness — which Butler may illustrate — to find a violation of the peremptory challenge right despite the overall reasonableness of the opportunity afforded a defendant to exercise the right itself tends to discredit an automatic reversal rule and push one toward the other extreme of “aiways-harmless” unless actual bias is shown.
. Although appellants personally were allowed only three challenges each in this four-codefend-ant trial, Rule 24(b) expressly allocates challenges to “each side,” not each defendant, the presumption being that defendants fairly joined for trial will cooperate in joint use of their per-emptories.
. I can think of no satisfactory reason for declining to allow strikes into the venire panel.