Jefferson v. United States

ROGERS, Chief Judge,

dissenting:

In Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the Supreme Court made clear that racially discriminatory peremptory strikes are prohibited for several reasons. First, a defendant has a right, under the Equal Protection Clause of the Fourteenth Amendment, to be tried by a jury selected by non-discriminatory means from a venire which is fairly chosen. Batson v. Kentucky, supra, 476 U.S. at 85-87 , 106 S.Ct. at 1717-18 . Second, a discriminatory strike violates the equal protection rights of the individual juror who was unfairly struck, and implies that the juror was not competent to serve. *20 Id. at 87 , 106 S.Ct. at 1718 ; Little v. United States, 613 A.2d 880, 884 (D.C.1992) (citing Powers v. Ohio, 499 U.S. 400 , -, 111 S.Ct. 1364, 1370 , 113 L.Ed.2d 411 (1991)). The defendant has standing to raise an equal protection claim on behalf of the excluded juror. Little, supra, 613 A.2d at 884 . Third, discriminatory strikes “undermine public confidence in the fairness of our system of justice.” Batson, supra, 476 U.S. at 87 , 106 S.Ct. at 1718 .

To demonstrate a prima facie case of discrimination, the Batson Court instructed that:

the defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact ... that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” ... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the venire [members] from the pet-it jury on account of their race....

[T]he trial court should consider all relevant circumstances. For example, a “pattern” of discrimination might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising [her or] his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative.

Batson, supra, 476 U.S. at 96-97 , 106 S.Ct. at 1722-23 (citation omitted) (emphasis added).

Thus, the Supreme Court did not suggest, or imply, that a prima facie case could only be established by a statistical or mathematical showing. This court has likewise made clear that establishing a prima facie case “is not strictly a numbers game.” Little, supra, 613 A.2d at 885 . Rather, depending on the nature of the defendant’s claim, the requirements for showing a pri-ma facie case may vary. See Part I, infra.

In Nelson v. United States, 601 A.2d 582 (D.C.1991), which the majority concludes is essentially dispositive of the instant appeal, see majority opinion at 6, the defendant’s sole claim was that “the government had used its peremptory challenges to strike only [B]lack persons” so that the jury was not representative of his peers. 601 A.2d at 590 . The holding in Nelson means that a mere assertion that the government has struck only Black persons is alone not normally sufficient to establish a Batson claim, and if the defendant’s only supporting contention is that the resulting jury was disproportionately composed, the defendant must show the composition of the venire or jury. See id. at 590. In other words, a defendant must provide the appellate court with a sufficient record to permit the court to evaluate his or her claim. See id. (citing Cobb v. Standard Drug Co., 453 A.2d 110 (D.C.1982)). It was the Nelson defendant’s emphasis and reliance on the final composition of the jury that made statistics about the jury’s or venire’s racial composition mandatory in that case. 1 See id.

By contrast, appellant does not rely solely on the fact that nine of the government’s ten peremptory strikes were directed against Blacks. Instead, he refers to those numbers and also points to other indicia of discriminatory use of peremptory strikes, noting that most of the Blacks struck by *21 the government answered no voir dire questions, that the only white venire member struck by the government did answer such a question, and that the prosecutor offered only vague reasons for her strikes and commented on the race of those struck by the government. Unlike the defendant in Nelson , appellant provided record evidence of these supporting circumstances. Moreover, the record is not as barren of information about the racial composition of the venire and jury as the majority opinion would tend to suggest. See Part II, infra. In addition, the defendant in Nelson made no claim that a juror’s constitutional rights had been violated while appellant makes both a broad claim that the government used its peremptory strikes to remove Blacks from appellant’s jury and a narrower claim that the government violated individual Black jurors’ constitutional rights by striking them from the jury because they were Black. Consequently, Nelson’s insistence on a numerical showing is not dispos-itive of this appeal. 2

The trial judge did not make any findings or a ruling in response to the Batson challenge. See Little, supra, 613 A.2d at 887 (trial judges should make “clear record” of reasons for finding or not finding a prima facie case); cf. Batson, supra, 476 U.S. at 96-98 , 106 S.Ct. at 1722-23 ; United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir.1987), vacated in part on other grounds, 836 F.2d 1312 (11th Cir.1988), cert. dismissed, 487 U.S. 1265 , 109 S.Ct. 28 , 101 L.Ed.2d 979 (1988). The judge did not determine whether the defense had established a prima facie case that the prosecutor had exercised her peremptory challenges in a racially discriminatory manner, nor whether the prosecutor had provided race neutral explanations. Rather, despite timely Batson objections by defense counsel, the judge proceeded to trial without conducting further inquiry. 3 Hence, the *22 judge abused his discretion. See Johnson v. United States, 398 A.2d 354, 363 (D.C.1979) (“[fjailure to exercise choice in a situation calling for choice is an abuse of discretion”).

Upon a review of the record, 4 particularly in light of the prosecutor’s facially suspect comments, the lack of a prima facie case is not so clear that this court can affirm in the absence of trial court findings. See Batson, supra, 476 U.S. at 96-97 , 106 S.Ct. at 1723 (“[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances”; Court expressing “confidence that trial judges ... will be able to decide if the circumstances ... create[] a prima facie case”); Bailey, supra 84 Md.App. at 330 note 2, 579 A.2d at 776-77 (citing Batson and noting importance of trial court’s “feel” of the case); see also Stanley, supra 313 Md. at 57 note 3, 542 A.2d at 1277 & n. 11. The record does not permit the court to conclude that there was no basis on which the trial judge could have found that appellant had presented a prima facie case entitling him to the benefit of the rebuttable presumption under Batson. See Stanley, supra 313 Md. at 57 note 3, 542 A.2d at 1278 (question is whether “legally mandatory rebuttable presumption was established”). Indeed, on this record, where the facts are undisputed, the court could find as a matter of law that appellant had established a prima facie case. See Little, supra, 613 A.2d at 885 (a “close” case where six of the government’s seven peremptory strikes were aimed at Black venire persons at Black defendant’s trial, some of those Black venire persons answered no questions, and the only white venire person struck had answered a question; jury contained larger proportion of whites than the venire); Stanley, supra 313 Md. at 57 note 3, 542 A.2d at 1277, 1278-79 (and cases cited); see also majority opinion at 18 n. 10. At least the court should remand the case to the trial judge for findings and a ruling; cf. Stanley, supra 313 Md. at 57 note 3, 542 A.2d at 1279-80 (limited remand); id. 542 A.2d at 1285 (fact that judge “simply let the matter drop” weighs against limited remand). See Part III, infra.

I.

The requirements for a prima facie case to raise a Batson claim are not intended to create an insurmountable barrier of exactitude. This is clear in both state and federal court decisions. 5 E.g., Stanley, supra note 3, 542 A.2d at 1271-73 (reviewing procedures required by Batson). The federal circuit courts of appeals have not interpreted Batson to require that the defendant must show the relevant group’s representation in the venire or jury. Batson, supra, 476 U.S. at 96 , 106 S.Ct. at 1722-23 ; id. at 97 , 106 S.Ct. at 1723 (prosecutor’s com *23 ments or pattern of strikes may support inference of discrimination, but “[t]hese examples are merely illustrative”). See, e.g., Jones v. Ryan, supra note 4, 987 F.2d 960 at 970-71 (“composition and ‘random’ manner of selecting venire panel are immaterial to a Batson inquiry”; five factors for trial court to employ in assessing whether a defendant has established a prima facie case); 6 Moore, supra note 5, 895 F.2d at 485 (prima facie case is “fact-intensive,” requires facts, “not just numbers alone”). 7

Obviously, information about the relevant group’s representation in the venire or jury is relevant and useful. See, e.g., United States v. Sangineto-Miranda, 859 F.2d 1501, 1520 (6th Cir.1988). 8 However, specific statistical information on the racial composition of the jury is not mandatory, partially because there are other ways to show discrimination. 9 See Alexander v. Louisiana, 405 U.S. 625, 630 , 92 S.Ct. 1221, 1225 , 31 L.Ed.2d 536 (1972) (pre-Batson, discrimination in composition of grand jury, “mathematical standards” not set, “factual inquiry is necessary in each case”). The Eighth Circuit Court of Appeals has succinctly observed, in concluding that a prima facie case of discrimination had been established, that:

[a]t oral argument, the Government requested that this court address the ne *24 cessity of determining the racial composition of a jury panel. We decline to do so.... [A] Batson inquiry focuses on whether or not racial discrimination exists in the striking of a [BJlack person from the jury, not on the fact that other [Bjlacks may remain on the jury panel.

United States v. Johnson, 873 F.2d 1137 , 1139 n. 1, 1140 (8th Cir.1989), cert. denied, 498 U.S. 924 , 111 S.Ct. 304 , 112 L.Ed.2d 257 (1990). 10 Clearly, the presence of Blacks on a jury panel does not prevent a defendant from establishing a prima facie case-of a Batson violation. 11

In Batson, supra, 476 U.S. at 94 n. 18, 106 S.Ct. at 1721 n. 18, the Supreme Court referred to Title VII disparate treatment cases as describing “prima facie burden of proof rules.” Title VII cases indicate that the prima facie case requirement is not unduly burdensome. In the Title VII context, statistics may be useful to determine if the employer exhibits a general pattern of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 , 93 S.Ct. 1817, 1825-26 , 36 L.Ed.2d 668 (1973). Likewise, the racial composition of the employer’s workforce would be “helpful,” but it is not controlling. Id. at 805 n. 19, 93 S.Ct. at 1826 . 12 Thus, in a Title VII disparate treatment case, the Court stated that:

[t]he plaintiff must prove by a preponderance of the evidence that she ... was rejected under circumstances which give rise to an inference of unlawful discrimination. The prima facie case ... eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection ... [and] “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.”

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253-54 , 101 S.Ct. 1089, 1093-94 , 67 L.Ed.2d 207 (1981) (cita *25 tion omitted). 13 See also St. Mary’s Honor Center v. Hicks, — U.S. -, -, 113 S.Ct. 2742, 2746-48 , 125 L.Ed.2d 407 (1993); United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 , 713 n. 2, 103 S.Ct. 1478 , 1481 n. 2, 75 L.Ed.2d 403 (1983) (no reversible error to find discrimination (not merely prima facie case); statistics cited were that only two of twelve employees promoted ahead of plaintiff had any post-high school education and none had college degrees). In International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 358 n. 44, 97 S.Ct. 1843 , 1866 n. 44, 52 L.Ed.2d 396 (1977), the Court explained that under McDonnell Douglas Corp. v. Green, supra, a plaintiff may establish an inference of discriminatory intent by merely showing that the most common non-discriminatory reasons for the hiring decision (e.g., absence of a vacancy and “absolute or relative lack of qualifications”) do not apply.

Therefore, when courts apply a Title YII disparate treatment-type prima facie analysis to Batson claims, a criminal defendant may present a prima facie case of a Batson violation by showing that peremptory strikes against jurors belonging to a relevant group were not based on the most common legitimate reasons for striking jurors, such as bias or answers to voir dire questions. See Little, supra, 613 A.2d at 885 (main function of prima facie case requirement is to “eliminate the most common nondiscriminatory reasons for the prosecutor’s peremptory strikes”).

II.

Appellant has raised claims of two types of discrimination described in Batson, supra, 476 U.S. at 85-87 , 106 S.Ct. at 1716-18 . He contends that the government im-permissibly used its peremptory challenges to discriminate against individual Black persons in the venire and also to attempt to alter the racial balance of the jury that would hear his case by eliminating as many Blacks as possible from the jury panel. At trial, defense counsel objected to individual strikes of Black venire members by the prosecutor as well as to the pattern of strikes against Black venire members. On appeal, appellant maintains that he presented a prima facie ease that the prosecutor used peremptory strikes to strike members of the venire solely because they were Black.

The prosecutor exercised all ten of her peremptory strikes, using them to remove one white and nine Black venire members. Six of the Black venire members struck by the prosecutor did not answer a single voir dire question. After the prosecutor indicated her intent to exercise her fifth peremptory strike, defense counsel raised an objection under Batson . The prosecutor’s response was that not all of the jurors she struck were of the same race and that defense counsel was striking only white jurors. Defense counsel renewed his objection after the jury was chosen, stating that all but one of the government’s peremptory strikes were aimed at Black voir dire members and most of those struck had not answered any voir dire questions. The trial judge asked, “[w]hat does the government have to say?” The prosecutor responded again that not all of her strikes had been aimed at venirepersons of the same race and that defense counsel had struck only white venire members. The trial judge then remarked that there was no need to “resolve that issue” at that time, and that defense counsel was free to raise the issue again.

*26 While the record presented to the court might have been more detailed, the record is not barren of relevant information. Defense counsel did not provide a statistical breakdown of the composition of the venire and petit jury, but the failure to do so is not necessarily fatal. See supra note 7. In fact, the record makes clear that the prosecutor and defense counsel exhausted the entire venire, so that the trial court almost ran out of venire' members. 14 Every one of the venire members who remained after challenges for cause was either placed on the jury or removed by peremptory strike. It is, therefore, possible to estimate the racial composition of the venire. 15 Even assuming that statistical information about the racial composition of the venire or jury is necessary, those numbers can be estimated.

The record reveals the race of the 19 venire members who were struck by peremptory challenges: 9 Blacks were struck by the prosecutor, 1 white was struck by the prosecutor, and 9 whites were struck by the defense, or a total of 9 Blacks and 10 whites were struck by peremptory challenges. The only other members of the venire, besides those struck for cause or those absent or late, were the 14 actual jurors (12-person jury plus two alternates). Therefore, there was a 33-person venire after the dismissals for cause (19 struck by peremptory challenges, plus 14 seated as the jury). If all 14 jury members were white, the venire had 24 whites and 9 Blacks, making it approximately 27:3 percent Black and 72.7 percent white. If all 14 jury members were Black, the venire had 23 Blacks and 10 whites, and was approximately 69.7 percent Black and 30.3 percent white. 16

Therefore, the venire, after challenges for cause, was approximately 27 percent to 70 percent Black, but 90 percent of the prosecutor’s strikes were directed at Black venire members. 17 In addition to these numbers, the prosecutor’s explanations for her strikes were vague and mentioned the race of the venire members struck by defense counsel, the one white venire member struck by the prosecutor answered a question about drug use while most of the Black venire members struck by the prosecutor answered no voir dire questions, and the prosecutor exercised all of her peremptory challenges against the jury panel. 18 *27 See Little, supra, 613 A.2d at 886 (prosecutor’s “generalized statement of reasons ... may mask discriminatory motives and thus may contribute to ... a defendant’s attempt to make a prima facie showing”); id. at 887 (prosecutor passed four times).

III.

The charge that the government has discriminated under Batson is a “very serious” one, as the majority acknowledges. See majority opinion at 6. As the Supreme Court has pointed out, it implicates no less than public confidence in the justice system. See Batson, supra, 476 U.S. at 87 , 106 S.Ct. at 1718 . The government must be accorded an opportunity to make a full response to a Batson claim. See Jones v. Ryan, supra note 4, 987 F.2d at 972 (“prosecutor has the burden of providing ‘a “clear and reasonably specific” explanation of his [or her] “legitimate reasons” for exercising the challenges’ ”) (quoting Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir.), cert. denied, 498 U.S. 1003 , 111 S.Ct. 568 , 112 L.Ed.2d 574 (1990) (citing Batson, supra, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20)). The defense, in turn, should be given an opportunity to respond to the prosecutor’s statement of reasons, 19 From the record in the instant case, in my view, the court could conclude that appellant had presented a prima facie case on either of his Batson claims. 20 Cf. Stanley, supra 313 Md. at 57 note 3, 542 A.2d at 1278-79 (citing cases). A limited remand would follow. Id. 542 A.2d at 1279-80. But, at least, on this record, the court should remand the case to the trial court to make findings of fact and a ruling on the defense challenges to the prosecutor’s use of peremptory challenges. See id. 542 A.2d at 1277.

The seriousness of the charge made by defense counsel cannot be ignored by the court; too much is at stake. See majority opinion at 15 (Batson claim “demands the closest possible scrutiny by both the trial court and this court”). As pointed out, moreover, by the Third Circuit Court of Appeals:

if tension exists between the “old tradition” of unconsidered preference for unfettered use of peremptory challenges and the still relatively “young tradition” of meaningful safeguards against invidi *28 ous application of racial stereotypes, then the latter consideration must prevail. If the former consideration still prevailed, the “price” would be the jeopardizing of the integrity of the judicial process and the stigmatization of venire-persons of color. And such a price would be “too high.”

Jones v. Ryan, supra note 4, 987 F.2d at 968 (citing Georgia v. McCollum, supra — U.S. at - note 18, 112 S.Ct. at 2358, in turn, citing Edmonson v. Leesville Concrete Co., — U.S. -, -, 111 S.Ct. 2077, 2088 , 114 L.Ed.2d 660 (1991)). Accordingly, I respectfully dissent.

. The recent decision in Brown v. United States, 627 A.2d 499 (D.C.1993), like Nelson, supra, concerned a defendant who challenged "the composition of the jury,” thus making the racial composition of the jury or the venire an almost indispensable part of the record necessary for appellate review; apparently, the defendant in Brown failed to point to any circumstances that showed that the prosecutor had exercised peremptory challenges in a racially discriminatory way. See Brown, supra, 627 A.2d at 505 . Like Nelson, supra, Brown means that when the only circumstance to which the defendant points as showing racial discrimination is the racial composition of the jury, the defendant must present the appellate court with a record that enables the appellate court to have sufficient information about the jury’s or venire's racial composition to evaluate the defendant’s claim.

. Bailey v. State, 84 Md.App. 323 , 579 A.2d 774, 778 (1990), cited by the majority, see majority opinion at 16, is similar to Nelson and similarly fails to determine the result in the instant case. In Bailey , the defendant claimed that the trial judge was compelled to find a prima facie case "solely on the mathematical basis that seven out of ten of the prosecutor’s peremptory challenges were directed at black prospective jurors." Bailey, supra, 579 A.2d at 777 (emphasis added). The Maryland court was aware of the racial composition of the defendant’s jury. Id. at 775. The Bailey court further noted that “[tjhere are, of course, other ways of demonstrating a prima facie case of the racially discriminatory use of peremptory challenges. We are concerned here, however, only with the probative impact of statistics standing alone.” Id. at 778 (second emphasis added). Cf. Eiland v. State, 92 Md.App. 56 , 607 A.2d 42, 57 (1992) (using "admittedly imprecise denominator” of gender composition of jury pool that remained after challenges for cause, even though no information available about gender of those "actually called to be accepted or challenged”).

The majority’s reliance on Little, supra, 613 A.2d 880 , is also unpersuasive. See majority opinion at 17-18. In Little , the court deferred to the trial court’s findings and emphasized the fact that the prosecutor gave up potential opportunities to discriminate by passing on peremptory challenges four times; even so, the court described Little as a “close” case. Id. at 887, 885 . In the instant case, the trial judge did not make any findings or rule on whether appellant had presented a prima facie case, so no deference is due, and the prosecutor never passed over an opportunity to make a peremptory challenge, even though only one eligible venire member remained in the courtroom during the last round of strikes. Therefore, Little does not determine that appellant failed to present a pri-ma facie showing in the instant case.

. The majority concludes that the trial judge’s ruling on whether appellant had presented a prima facie case “can be inferred from his decision to proceed with the trial after hearing the prosecutor's response to defense counsel’s Bat-son claim.” Majority opinion at 17. The majority presumably means that the trial judge implicitly found that appellant had not presented a prima facie case. However, the trial judge declined to make any ruling, explicitly stating that “I don’t have to resolve that issue right now.... You may raise it at a later date if you want to.” Indeed, it might even be argued that when the trial judge asked the prosecutor for an explanation, the judge implicitly made a finding that appellant had presented a prima facie case, in which case the judge erred in making no findings and in failing to rule on the ultimate issue of discrimination. See Batson, supra, 476 U.S. at 98 , 106 S.Ct. at 1724 (after prosecutor gives reason, trial judge has "duty to determine if the defendant has established purposeful discrimination”); Stanley v. State, 313 Md. 50 , 542 A.2d 1267, 1283 (1988) (when trial judge asked prosecutor for explanation, “[tjhis was at least an implied finding of the existence of a prima facie case”) (citing cases); cf. Bailey, supra 84 Md.App. at 330 note 2, 579 A.2d at 777 (quoting Stanley, supra, 542 A.2d at 1283 ). In any event, *22 given the emphasis on trial court findings in response to Batson inquiries, see Little, supra, 613 A.2d at 885 , inferred findings would appear to have no place.

. See Stanley, supra 313 Md. at 57 note 3, 543 A.2d at 1277 (where undisputed relevant facts, court exercises its "independent constitutional judgment with respect to the conclusion to be drawn from them”); cf. Little, supra, 613 A.2d at 885 (defer to trial judge's findings and rulings but judge must "consider all relevant circumstances”) (citation omitted); Jones v. Ryan, 987 F.2d 960, 965-66 (3d Cir.1993) (habeas corpus; Batson claim ordinarily mixed question of fact and law but trial court failed to make findings regarding prima facie case and prosecutor’s explanation; plenary review).

. Courts, in fact, state the requirements fairly generally. Indeed, most cases simply quote Batson v. Kentucky, supra, 476 U.S. at 96 , 106 S.Ct. at 1722 -23 to describe the requirements of a prima facie case. See Teague v. Lane, 489 U.S. 288, 295 , 109 S.Ct. 1060, 1067 , 103 L.Ed.2d 334 (1989); United States v. Moore, 895 F.2d 484, 485-86 (8th Cir.1990); United States v. Battle, 836 F.2d 1084, 1085 (8th Cir.1987); Mejia v. State, 328 Md. 522 , 616 A.2d 356, 361 (1992); People v. Jenkins, 75 N.Y.2d 550 , 555 N.Y.S.2d 10, 12-13 , 554 N.E.2d 47, 49-50 (1990); see also United States v. Dawn, 897 F.2d 1444, 1448 (8th Cir.1990) ("number of peremptory challenges the prosecutor exercises to exclude black members of the venire” is not enough for prima facie showing, trial court should consider all facts and circumstances, including a "pattern of striking blacks and the prosecutor's questions and statements during voir dire”), cert. denied, 498 U.S. 960 , 111 S.Ct. 389 , 112 L.Ed.2d 400 (1990); Stanley, supra 313 Md. at note 3, 542 A.2d at 1277, 1278 (preponderance standard for initial prima facie showing, shifting burden of production to the state to respond to the rebuttable presumption of purposeful discrimination).

. The Third Circuit Court of Appeals’ five factors are: "How many members of the ‘cognizable racial group' are in the venire panel; the nature of the crime; the race of the defendant and victim; a pattern of strikes against black [or other cognizable racial group] jurors in a particular venire; and a prosecutor’s questions and statements during the selection process.” Jones, supra note 4 , 987 F.2d at 970 -71 (citing United States v. Clemons, 843 F.2d 741, 748 (3d Cir.), cert. denied, 488 U.S. 835 , 109 S.Ct. 97 , 102 L.Ed.2d 73 (1988)) (brackets by the Third Circuit Court).

. See also Clemons, supra note 6 , 843 F.2d at 748 (trial judge "should" consider the racial composition of the panel, the race of the defendant and victim, and the nature of the crime, but this "illustrative list” is not binding on trial judges); id. at 748 n. 5 ("the trial judge shall make determinations concerning the relevance of these statistical factors when appropriate”); United States v. Alvarado, 923 F.2d 253, 255, 256 (2d Cir.1991) ("Batson’s citation of Castaneda v. Partida, 430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977), in connection with the assessment of a prima facie case, Batson, 476 U.S. at 96 , 106 S.Ct. at 1722 -23 ... indicates that statistical disparities are to be examined"; but appellate court relied on general population statistics “as a surrogate” for statistics about the racial composition of the particular venire; “a challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under Batson ”); cf. United States v. Esparsen, 930 F.2d 1461 , 1467 n. 5, 1468 (10th Cir.1991) (disagreeing with Alvarado’s approach; “only the racial composition of the universe in which the prosecutor was operating is relevant”; but acknowledging that the court was “not establish[ing] at this time any rule on what amount of statistical disparity constitutes a pri-ma facie case. Nor do we intend to diminish the importance of non-numerical factors, such as the demeanor of potential jurors, the prosecutor’s behavior, or the voir dire answers of venire members of different races”) (emphasis added), cert. denied, - U.S. -, 112 S.Ct. 882 , 116 L.Ed.2d 786 (1992); id. at 1467 (statistics of race of jurors struck by prosecutor are not enough to establish prima facie case and “take[ ] on meaning only in the context of other information such as the racial composition of the venire, the race of others struck by the prosecution, or the voir dire answers of those who were struck compared to the answers of those who were not struck”) (footnotes omitted).

. The Sixth Circuit Court of Appeals stated:

[I]t will be relevant to the third and crucial requirement of a prima facie case to know: (1) the racial composition of the initial group seated and the final jury panel sworn; (2) the number of peremptory strikes allowed each side; and (3) the race of those who were struck or excused from the jury panel throughout the voir dire (whether for cause or by a peremptory challenge), the order of strikes, and by whom they were exercised. In an appropriate case, it may also be useful to consider evidence as to the percentage of the "cognizable racial group” in the jury pool, or the racial composition of the district wherein the jury pool is selected.

Id. (footnote and citation omitted). The record in the Sangineto-Miranda case was a little unclear about the race of the venire members who were struck and which party conducted each strike, although the court was aware that at the defendant’s second trial, ”[t]he original panel of twelve potential jurors seated consisted of 7 blacks and 5 whites.... [and] the final jury panel contained at least 7 blacks.” Id. at 1520-21 . The court concluded, emphasizing its deference to the trial court's findings, that the defendant had not established a prima facie case of discrimination because his only contention was that all of the prosecution's strikes were aimed at Blacks. Id. at 1521 .

. See supra note 5.

. The Florida Supreme Court concluded that a defendant had established a prima facie case merely by showing that four of the prosecutor's six peremptory strikes were aimed at Black ve-nire members. State v. Slappy, 522 So.2d 18, 19, 23 (Fla.), cert. denied, 487 U.S. 1219 , 108 S.Ct. 2873 , 101 L.Ed.2d 909 (1988). The court did not state or consider the racial composition of the venire, and merely noted that "the final jury panel apparently contained one [B]lack,” while stating that "number[s] alone [are] not dispositive, nor even the fact that a member of the minority in question has been seated as a juror.” Id. at 24, 21 (citing federal cases). However, the court’s standards were partly derived from its own case law, which in turn was based on the state constitution and provided more protection for defendants than the federal constitution. Id. at 20-21.

. See Johnson, supra, 873 F.2d at 1139 ; Jenkins, supra note 5 , 554 N.E.2d at 51 (discriminatory strikes violate rights of individual jurors, and "any consideration of the percentage of [B]lacks remaining on the petit jury compared to the percentage of [B]Iacks in the community ... is irrelevant to an equal protection analysis under the Fourteenth Amendment"); Stanley, supra 313 Md. at 57 note 3, 542 A.2d at 1278 (Md., presence of blacks on jury not determinative, record revealed number of blacks on veni-re); see also Moore, supra note 5 , 895 F.2d at 486 n. 5 (same percent of Blacks in jury and venire, “exclusion of [B]lacks and not their inclusion ... is vital to a prima facie case of discrimination,” but consider that prosecutor could have struck more Blacks if had intent to discriminate); Gordon, supra, 817 F.2d at 1541 (dictum, discrimination against one potential juror is enough, even if others are seated); Battle, supra note 5 , 836 F.2d at 1086 (same, dictum).

. While Batson refers to Title VII disparate treatment cases, Batson, supra, 476 U.S. at 94 n. 18, 106 S.Ct. at 1721 n. 18, disparate impact cases may understandably place more emphasis on statistical comparisons. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650-55 , 109 S.Ct. 2115, 2121-24 , 104 L.Ed.2d 733 (1989); Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987, 991-92 , 108 S.Ct. 2777, 2785, 2787-88 , 101 L.Ed.2d 827 (1988) (disparate impact cases often focus on statistical disparities and competing explanations for them; discriminatory motive not necessary but ultimate legal issue is same as in disparate treatment case); Newark Branch N.A.A.C.P. v. Town of Harrison, 940 F.2d 792, 798 (3d Cir.1991) (disparate impact cases often involve comparison of minority representation in relevant labor pool with minority representation in jobs at issue) (citing Wards Cove Packing Co. v. Atonio, supra ); cf. Griggs v. Duke Power Co., 401 U.S. 424 , 430 & n. 6, 91 S.Ct. 849 , 853 & n. 6, 28 L.Ed.2d 158 (1971) (disparate impact). It is significant that the Supreme Court, in Batson , referred to disparate treatment rather than disparate impact Title VII cases in discussing the type of prima facie showing necessary for a Batson claim. Batson, supra, 476 U.S. at 94 n. 18, 106 S.Ct. at 1721 n. 18.

. A prima facie case for a Title VII claim of racial discrimination has also been described as requiring a plaintiff to show:

(i) that [she or] he belongs to a racial minority; (ii) that [she or] he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite [her or] his qualifications, [she or] he was rejected; and (iv) that, after [her or] his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.

McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802 , 93 S.Ct. at 1824 . The Court noted that "[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required ... is not necessarily applicable in every respect to differing factual situations.” Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13.

. When the attorneys finished choosing the jury, there were no eligible venire members left — only a juror whom the prosecutor had successfully moved to strike for cause earlier in the process remained.

. In Nelson, supra, in contrast, the appellate court was unable to determine the relevant numbers (in that case, jury composition) from the record. Nelson, supra, 601 A.2d at 590 . In addition, the fact that the court was running out of venire members in the instant case made it easier for counsel to predict which venire members would replace those removed by peremptory strikes, which would have made it easier to deliberately alter the racial composition of the jury. See Little, supra, 613 A.2d at 884 (under procedures used, it was not possible to predict which venire member would replace stricken juror); cf. Eiland, supra 92 Md.App. at 46 note 2, 607 A.2d at 62 (Md., court almost ran out of venire members, prosecutor used peremptory strikes to remove some jurors so he could place specific other venire members on the jury).

. If the venire mirrored the District’s population, it would have been approximately 70% black and 30% white, but it seems, after challenges for cause, likely to have had more whites than the general population. Bureau of the Census, Economic and Statistics Admin., U.S. Department of Commerce, State and Metropolitan Area Data Book 1991, at 208 (4th ed. 1991); cf. Nelson, supra, 601 A.2d at 591 n. 25.

. See Stanley, supra 313 Md. at 57 note 3, 542 A.2d at 1278-79 (and cases cited).

. The strikes exercised by the defendant are relevant only in determining whether any non-group members remained in the pool when it became the prosecutor’s turn to strike. Cf. Nelson, supra, 601 A.2d at 590 . In the instant case, defense counsel and the prosecutor alternated strikes, and defense counsel continued to strike white jurors from the originally-seated panel long into the selection process, so that there is no tenable argument that defense counsel's strikes removed all of the whites from the jury box, leaving only Blacks for the prosecutor to strike. Seven of defense counsel's peremptory challenges were aimed at the fourteen-person panel which was seated in the jury box before peremptory challenges began. Therefore, since all of defense counsel's strikes were aimed at white jurors, there were at least seven whites in the jury box, from the very beginning of the peremptory strikes, who were available for the prosecutor to strike. The government may not *27 retaliate against racially-motivated defense strikes by making racially-motivated strikes of its own. The proper remedy for the government would be a reverse-Batson claim. See Georgia v. McCollum, — U.S. -, -, 112 S.Ct. 2348, 2359 , 120 L.Ed.2d 33 (1992).

. Several Batson cases indicate that the defendant must be given an opportunity to rebut the government’s proffered reasons for its peremptory strikes. See Gordon, supra, 817 F.2d at 1541 (remanding, where trial court "failed to make any independent inquiry or allow [the defendant] the opportunity to offer rebuttal evidence pertaining to the Government's reasons," originally a Swain claim of past pattern of discrimination); Stanley, supra 313 Md. at 57 note 3, 542 A.2d at 1272-73 (Md., interpreting Batson and Title VII cases: defendant must be given opportunity to rebut prosecutor’s reasons); id. 542 A.2d at 1272 (because “the defendant has the ultimate burden of persuading the court there has been intentional racial discrimination[,] ... once the prosecutor has come forth with reasons to rebut the defendant's [prima facie] case, the defendant then ‘must be afforded a fair opportunity to demonstrate that [the prosecutor's] assigned reason for [the peremptory challenge] was a pretext or discriminatory in its application’ ’’) (paraphrasing McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 807 , 93 S.Ct. at 1826-27 ); McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 807 , 93 S.Ct. at 1826-27 (Title VII disparate treatment case, petitioner must be given opportunity to rebut asserted reasons of employer); Dawn, supra note 5 , 897 F.2d at 1448 (Batson claim, trial court must give defendant “reasonable opportunity” to develop record).

. The record shows that appellant is Black, and, unlike Stanley, supra 313 Md. at 57 note 3, 542 A.2d at 1283, 1285 , the prosecutor was given a full opportunity by the trial judge to respond to the defense claim that she was exercising her peremptory challenges in a racially discriminatory manner. The prosecutor’s response to appellant’s initial Batson objection occupies one paragraph of the transcript, and her response to appellant’s second articulation of the Batson challenge appears in three paragraphs, constituting twenty lines of transcript. It is true, however, that the government was never expressly informed by the trial judge that appellant had presented a prima facie case which shifted the burden to the prosecutor to give neutral reasons for her peremptory challenges of Black venire members. See Batson, supra, 476 U.S. at 97-98 , 106 S.Ct. at 1723-24 .