Nelson v. United States

SCHWELB, Associate Judge,

concurring in part and concurring in the judgment:

I agree that Nelson’s conviction should be affirmed, and join parts I to III of the majority opinion. My views differ sharply from the majority’s with respect to the so-called Batson issue, 1 however, and I write separately to explicate them.

I.

The trial in this ease was about the alleged sex abuse by an adult male of a little girl. As Justice O’Connor recently observed in her concurring opinion in J.E.B. v. Alabama ex rel T.B., — U.S. -, -, 114 S.Ct. 1419, 1430 , 128 L.Ed.2d 89 (1994), “[a] plethora of studies make [it] clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors.” Id. at -, 114 S.Ct. at 1432 (citations omitted). “[O]ne need not be a sexist to share the intuition that in certain cases a person’s gender and resulting life experience will be relevant to his or her view of the case.” Id. Accordingly, if the Batson line of eases did not exist, and if “peremptory” challenges could still be exercised as “peremptorily” as in days of yore, one might expect (other things being equal) that, for pragmatic reasons, the prosecutor would be motivated to strike men and to try to keep women on the jury, while the defense attorney would be inclined to do exactly the opposite.

Although Batson existed at the time of the trial in this case (and J.E.B. has now extended Batson’s reach to peremptory challenges based on a juror’s sex), the strikes in this case were exercised by both sides in what one might wish was the pre-Batson manner rather than contemporary practice, and it was done with a vengeance! The prosecutor used all ten of her ten peremptory challenges to strike men. 2 The defense attorney used all ten of his challenges to strike women. In other words, in a case in which the sex of a juror had perceived potential for influencing the outcome, twenty out of twenty strikes were exercised in a manner that eliminated members of the disfavored sex from the jury. Ingrained habits sometimes die hard!

“In the problem of racial discrimination, statistics often tell much, and Courts listen.” Tursio v. United States, 634 A.2d 1205, 1213 (D.C.1993) (quoting Harris v. District of Columbia Comm’n on Human Rights, 562 A.2d 625, 632 (D.C.1989)). “Nothing is as emphatic as zero.” Tursio, 634 A.2d at 1210 (quoting United States v. Hinds County School Bd., 417 F.2d 852 , 858 (5th Cir.1969) (per curiam), cert. denied, 396 U.S. 1032 , 90 S.Ct. 612 , 24 L.Ed.2d 531 (1970)). Although the alleged discrimination in this case was based on sex rather than on race, the force of the numbers is just as strong. Moreover, just as *313 there is “no acceptable place in the law for partial racial discrimination,” Tursio, 634 A.2d at 1213 n. 7 (quoting Smith v. Sol D. Adler Realty Co., 436 F.2d 344, 350 (7th Cir.1970)), so, too a peremptory challenge may not be based in part on the juror’s sex and in part on some other permissible ground. 3 To believe that the sex of the jurors played no role whatever in jury selection in this case is to credit the unbelievable; defense counsel commendably does not even pretend that it was all happenstance. 4

But, says the majority, “the trial court elicited from the prosecutor gender-neutral explanations for the strikes she made, and determined there was no constitutional violation.” I agree with my colleagues that the trial judge’s findings are entitled to considerable deference. See D.C.Code § 17-305 (1989). This does not mean, though, that we must cast aside the lessons of everyday life and the laws of probability. If the prosecutor told the court that she had flipped a coin ten times and that it had come up heads on each occasion, and if the defense attorney then reported that he had flipped the same coin ten more times and, without exception, it had come up tails, the trier of fact should, I think, be a little dubious about these assertions. If we add to this equation pragmatic reasons for the prosecutor to prefer heads (and for defense counsel to want tails), our suspicions would surely be even more pronounced. The statistical odds against such a result are overwhelming. 5 Yet the finding which the majority sustains here is (as to the jury proper, not counting one unchallenged male alternate) a pretty precise analogue to my hypothetical.

“Coincidences happen, but an alternative explanation not predicated on happenstance is often the one that has the ring of truth.” Tursio, 634 A.2d at 1213 (quoting Poulnot v. District of Columbia, 608 A.2d 134, 139 (D.C.1992)). To credit the assertion that the peremptory challenges in this ease (by either side) were completely gender-neutral, one would have to accept a coincidence of staggering proportions.

The trial judge correctly found that the defense had made out a prima facie case of sexually discriminatory strikes by the prosecutor; ten men challenged in ten strikes, when men were in the minority on the veni-re, was surely more than enough. Accord, Tursio, 634 A.2d at 1210-11 (striking nine non-blacks and one black, to create an all-black jury, held to make out a very strong prima facie case). 6 Indeed, if the issue had been presented to him, the judge could have made a similar determination with respect to the defense. In holding that the prosecutor had rebutted the prima facie case, however, the judge evidently failed to include sufficiently in his calculus what I would call the “heck-of-a-coincidence” factor. One might, I suppose, remand the case with directions to the trial judge to articulate clearly whether he had taken statistical probabilities into account and, if so, how the prosecutor’s explanation of her strikes had overcome so compelling a statistical showing. In my view, however, such a remand would be pointless, for the prosecutor’s explanations, which were vigorously attacked by the defense as inconsistent and pretextual, fell far short of rebutting the tale told by the statistics. The statistics, in turn, were buttressed by the underlying substantive character of the con *314 troversy (a sex abuse ease with a male defendant and a minor female complaining witness). I would hold as a matter of law, as we held on similar facts in Tursio , that the record established discrimination by the prosecutor on the basis of sex in the exercise of the government’s peremptory challenges.

II.

According to the government, the venire from which the jury was chosen included 18 men and 25 women; it was therefore 42% male. The jury which convicted Nelson consisted of four men and eight women; it was 33% male. As my colleagues point out, maj. op. at 18 note 12, these figures may be imprecise, for some first names are given both to boys and to girls, and the sex of every juror therefore cannot be definitively determined from the juror list. The defense has not challenged the prosecution’s figures, however, and has certainly not presented us with a record that would establish a greater disparity between the sexual composition of the venire and of the jury.

I do not believe that the Batson doctrine was intended to require reversal of a conviction under circumstances like those here. In Batson, the prosecutor was able to use his peremptory challenges to strike all of the black potential jurors, so that the defendant, who was black, was tried by an all-white jury. In Tursio , the situation was reversed, but the prosecutor (in a case with overtones of racial hostility) removed all non-blacks from the jury.

In the present case, on the other hand, the strikes of the two sides effectively cancelled each other out, and the sexual composition of the jury was at least roughly comparable to that of the venire. At the very least, notwithstanding any imprecision in the available figures, counsel for Nelson did not prove that the jury was more overwhelmingly female than the venire. Both bodies contained reasonable proportions of men and women. Although it appears likely that a significant number of potential jurors of both sexes were struck because of their sex, Nelson has not shown that the exercise of peremptory challenges as a whole, by both sides, significantly affected the sexual composition of the jury to his disadvantage.

We stated in Tursio that “exclusion of even one black [or white] member of the venire for racial reasons violates at least that prospective juror’s rights under the equal protection clause.” 634 A.2d at 1211 (internal quotation marks omitted) (quoting Little v. United States, 613 A.2d 880, 885 (D.C.1992)). The Supreme Court has recently made essentially the same point. J.E.B., — U.S. at - n. 13, 114 S.Ct. at 1428 n. 13. These statements do not mean, however, that reversal is required in every case in which there has been a Batson violation. If, for example, the prosecutor struck one potential juror for a discriminatory reason, and the defense attorney struck six others on equally improper grounds, all seven of these struck jurors would have been wronged, but it would be absurd to reverse the defendant’s conviction when the prosecution was far more sinned against than sinning.

On a record like this one, in which there was strong statistical evidence of discriminatory challenges by both sides, a defendant seeking reversal must demonstrate, in my view, that as a result of the peremptory challenges exercised by the parties, the sexual composition of the jury differed significantly, to his detriment, from the composition of the venire. Cf. United States v. Sangineto-Miranda, 859 F.2d 1501, 1521-22 (6th Cir.1988). 7 No such showing has been made, and I therefore join my colleagues in voting to affirm Nelson’s conviction.

. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).

. She did, however, leave a male alternate on the jury-

. This case was tried before Tursio was decided, and the trial judge may not have applied the rigorous “no partial discrimination” standard articulated in that decision.

. At oral argument in this court, Nelson's attorney, who also represented his client at trial, effectively acknowledged that his peremptory challenges of female jurors were based at least in part on their sex.

. The probability of an unbiased coin tossed once coming up heads is one in two. The chances of its being tossed twice and coming up heads twice are one over two squared Q/i2), i.e., one in four. The prospects of its coming up heads ten times are one over two to the tenth power Qk10), i.e., one in 1024! See, e.g., Richard A. Wehmhoefer, Statistics in Litigation § 3.04, at 40-41 (1985 & Supp.1993).

.See also United States v. Alvarado, 923 F.2d 253 (2d Cir.1991) racial minorities constituted approximately 29% of venire, but half of the prosecution’s strikes of jurors, and four-sevenths of its strikes of jurors and alternates combined, were of minority jurors; the court held that “a challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under Batson." Id. at 256 .

. In Sangineto-Miranda , the court said:

If, after the jury selection process has ended, the final jury sworn has a percentage of minority members that is significantly less than the percentage in the group originally drawn for the jury (or in the whole jury pool or in the district), then that would be a factor pointing toward an inference of discrimination. If, on the other hand, the percentage of minority members in the ultimate jury is the same or greater, that would be a factor tending to negate the inference of discrimination.

Id., 859 F.2d at 1521-22 . I note that in J.E.B., each side used all but one of its peremptory challenges to strike potential jurors of the adversary's sex. The resulting jury, however, was all-female, and the judgment was reversed.