Epps v. US

• Decision Date: 26 September 1996
• Docket Number: No. 94-CF-1088.,94-CF-1088.
• Citation: 683 A.2d 749
• Parties: Willis L. EPPS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

683 A.2d 749

Willis L. EPPS, Appellant, v. UNITED STATES, Appellee.

No. 94-CF-1088.

District of Columbia Court of Appeals.

Argued November 28, 1995.

Decided September 26, 1996.

Robert O. Goff, Manassas, VA, appointed by this court, for appellant.

Matthew G. Olsen, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and James Curt Bohling, Assistant United States Attorneys, were on the brief, for appellees.

Before FERREN, TERRY, and FARRELL, Associate Judges.

TERRY, Associate Judge.

Appellant Epps was convicted of distribution of cocaine and possession of cocaine with intent to distribute it, both in violation of D.C.Code § 33-541(a)(1) (1993). On appeal he contends that the trial court erred in finding that defense counsel had exercised his peremptory strikes in a racially discriminatory manner and in reinstating two of the stricken jurors as a remedy for the discrimination it found. We hold that the trial court's factual finding that defense counsel exercised his peremptory strikes in an improper, discriminatory manner is supported by the record. We also hold that the court's decision to restore the improperly stricken jurors to the jury panel as a remedy for defense counsel's discriminatory action was consistent with Supreme Court precedent. We therefore affirm the judgment of conviction.

I

Appellant and a juvenile accomplice were arrested after selling crack cocaine to two undercover police officers. His defense was, in essence, that he had not been involved in the sale, that he and a cousin just happened to be standing nearby when the sale took place, and that the juvenile had acted alone.

At appellant's trial, just before the voir dire began, the judge cautioned both the prosecutor and defense counsel against using their peremptory strikes in a discriminatory manner. The judge said, "If I do make an assessment of discriminatory strikes being exercised, those jurors who I conclude have been discriminatory stricken, they will be re-empaneled, and I will give the strike back that you exercised regarding that person, and I won't permit the party who exercised that discriminatory strike to strike that particular person."

After twelve jurors and two alternates were seated in the jury box, defense counsel used the first five of his ten peremptory challenges¹ against white jurors. At that point, the judge said to defense counsel at the bench, "Sir, I will put you on notice that I do see a pattern, and if I do see a further pattern, I will have to force you to tell me why you are doing that." Moments later, when counsel exercised his sixth strike to remove another white juror, the prosecutor challenged the propriety of defense counsel's peremptory strikes under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Finding a prima facie case of discrimination, the judge recessed the proceedings and scheduled a hearing the next day to conduct a detailed Batson inquiry.

At the Batson hearing, the discussion focused mainly on defense counsel's² removal of jurors 370, 371, 321, and 290. Counsel initially claimed that he had struck juror 370, a young white woman, because "her mannerism" and the fact that she was a lawyer made it likely that she would give more weight to arguments by the government. He said that "her psychic sic did not lie in the best interest of my client.... And that's why I struck her." Asked by the judge for specific facts to buttress his claim, defense counsel stated that juror 370 worked for the government. The prosecutor immediately pointed out that juror 370 did not work for the government but for a private law firm, Howrey & Simon. Defense counsel then asserted that working for a large law firm like Howrey & Simon disqualified juror 370 from jury service because her firm did not deal with "low income" people but with "people ... in authority positions, who make rules that guide this society." Asked again to cite facts to support this new claim, counsel said of Howrey & Simon, "They're not representing poor folks, Your Honor. Believe me." Questioning juror 370 directly, the judge discovered that she spent a quarter of her professional time working for the Washington Legal Clinic for the Homeless on a pro bono basis, and that a significant part of her work recently had been in a suit filed against the District of Columbia, seeking to enforce the law requiring the District to provide emergency shelter for the homeless. After chastising defense counsel for making "an assumption" about the juror's values, the judge nevertheless allowed juror 370 to be struck from the panel.

Defense counsel initially said that he struck juror 371, a forty-year-old white man, because of his "body language, the way he looked at the prosecutor." When the judge pressed him for a more substantial reason, counsel stated that because juror 371 was a manager, he would be predisposed to believe authority figures. Though denying that juror 371 had exhibited the body language alleged by defense counsel, the judge "accepted the representation that because he is a manager ... he may be inclined to believe people in authority...." The judge concluded that this was a "sufficient nondiscriminatory reason" to strike the juror.

When asked to justify his strike of juror 321, a white woman, defense counsel replied, "I had noticed she was seventy-three years of age. Although I don't know where she lives, my feeling is that she probably does not live down around 11th Street, which is the, you know, lower areas...." Counsel asserted that because of her age "she would tend to — to give more weight to the testimony of a police officer as opposed to the defendant in this case." In response, the prosecutor called attention to the fact that jurors 30, 399, and 354, all of whom were black, had not been struck despite the fact that they too were elderly. The judge took note of the fact that juror 321 lived in the 200 block of G Street, S.W., "which is a ... mixed neighborhood where a lot of low income people live . . . ."

In explaining his strike of juror 290, another white woman, defense counsel said he had struck her for essentially the same reasons as juror 321. As a retiree and an elderly woman, counsel maintained, juror 290 was "probably worried about, you know, law and order ... someone breaking into her house," and would therefore "tend to give ... undue leeway" to the government. "Whatever the government says, they tend to believe that." As with juror 321, the prosecutor challenged defense counsel's explanation for striking juror 290, noting that other elderly persons who were black had not been struck.

After considering all of defense counsel's explanations, the judge said that counsel's reasons for striking jurors 321 and 290 were "highly suspect" and found that they had been struck from the panel solely because of their race:

Based upon the fact that there were three black people who are of similar age and who all are ... retired, whom counsel could have stricken and did not strike . . . the only difference between the three people who were not stricken who are elderly and retired and the two people who were stricken ... is the fact that the ones that were stricken were white and the ones who were not stricken were black.

And I can't discern any difference between those individuals other than race. Therefore, in reference to the last two individuals, 321 and 290, since the reason given is a reason that I just cannot credit, considering the other people who were not stricken, I have to conclude that they only basis for striking was because they were white, and the law does not authorize that.

Defense counsel objected at length to the finding of discrimination, asserting that the judge had ignored the race-neutral justifications for his strikes. The judge made clear, however, that although he had heard and understood what counsel had said, he found that counsel's explanations were simply not credible:

The reasons you gave, counsel, I mean, they sound like the old reasons that were given in the deep south for denying black people jobs and working opportunities. They sound just like it.

A few moments later the judge added:

Given the reason you have given, I think anybody would have to conclude ... based upon the record that has been presented to me, that these two women were stricken for no other reason other than the fact that they are white. And the Batson decision and the subsequent decisions . . . have all concluded that is an inappropriate reason to strike a juror.

Given an opportunity to explain further the reasons for his peremptory strikes, defense counsel cited studies by a noted psychiatrist and sociologist, Dr. Kenneth Clark, who (according to counsel) said that police officers treat white and black people differently. Counsel claimed it was important to "look at the socio-economic aspect of how a person would view one coming out of the background of — with money" when choosing jurors. Asked to explain how he knew that jurors 290 and 321 had money, counsel replied, "Well, I don't know. I don't know. I'm just doing it by how they appear to me. How — and their body language and what they say, how they say it.... I can only guess." The judge responded, "You guessed that somebody who happens to be white and elderly has money whereas you conclude that somebody who is black and elderly doesn't have money ... but your guesses seem to be based upon stereotypes that I think are deplorable."

The judge then reinstated jurors 290 and 321 on the jury panel as a remedy for defense counsel's discriminatory conduct. In doing so, the judge cited his obligation not only to safeguard the fairness of the jury selection process, but to protect the rights of individual jurors who were struck from the panel for improper reasons. "It doesn't do any good ... to send this panel out and call for another panel because that particular juror's right not to be...