US v. Allen
| Decision Date | 30 July 1987 |
| Docket Number | No. CR. 85-36-N.,CR. 85-36-N. |
| Citation | 666 F. Supp. 847 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | UNITED STATES of America, v. Lorenzo ALLEN, a/k/a Ren, Francis Sylvester Lindsey, and Roger Lee Harrell, a/k/a Dubuck. |
James A. Metcalfe, Asst. U.S. Atty., Norfolk, Va., for plaintiff.
John W. Eppler, Norfolk, Va., Chris A. Christie, Paul H. Ray, Virginia Beach, Va., for defendants.
The defendants in this case were tried by jury beginning May 16, 1985, and were convicted of armed bank robbery (18 U.S.C. §§ 2113(a), (d)) and conspiracy (18 U.S.C. § 371) by verdicts returned May 20, 1985. The Fourth Circuit affirmed the convictions. United States v. Allen, 787 F.2d 933 (4th Cir.1986). This court denied the defendants' petition for rehearing on June 13, 1986, after considering the parties' briefs on the retroactive effect of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The defendants subsequently petitioned the Supreme Court for a writ of certiorari. Thereafter the Supreme Court held in Griffith v. Kentucky, ___ U.S. ___, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), that Batson should be applied retroactively to all cases pending on direct review. In accordance with Griffith, the Supreme Court granted certiorari in the present case, vacated the judgment, and remanded the case. Allen v. United States, ___ U.S. ___, 107 S.Ct. 1271, 94 L.Ed.2d 132 (1987). The Fourth Circuit in turn remanded the case to this court to determine whether the circumstances surrounding the prosecutor's use of peremptory challenges in the trial had created a prima facie case of discrimination against black jurors. United States v. Allen, 814 F.2d 977 (4th Cir.1987). On May 26, 1987, this court conducted an evidentiary hearing in order to determine whether the defendants had established a prima facie case of purposeful discrimination. Subsequent to ruling that defendants had established a prima facie case, the court set a briefing schedule, received briefs, and on July 2, 1987, heard arguments on the government's rebuttal to defendants' claim that the prosecutor's exercise of peremptory challenges was racially motivated. These procedures are in accord with the instructions given by the Fourth Circuit in United States v. Henry Hamilton, Jr., 819 F.2d 71 (4th Cir.1987).
During the May 26, 1987, evidentiary hearing, this court received into evidence as Court Exhibit 1 a statement dated May 19, 1987, of the prosecutor, J. Phillip Krajewski, regarding how the strikes occurred during the jury selection and a copy of 29 juror qualification statements, which indicate each juror's race. As Court Exhibit 2, the court received as evidence seven extra qualification statements of the white jurors who were excused.
The official file of this case also contains Juror Information Forms (AO-229) which the jurors filled out at the time they were summoned. (Court Exhibit 3). These forms do not indicate the jurors' race. Counsel for all three defendants stipulated that the evidence before the court accurately reflects the manner in which the strikes had occurred on May 16, 1986. Nothing in the original trial record contradicts evidence presented at the May 26, 1987, hearing.
As is the customary procedure of this court, the voir dire was conducted by the presiding judge and incorporated questions submitted in advance by both the prosecutor and counsel for the defendants. There is no suggestion by the defense counsel that the voir dire was improperly conducted or that any suggestion of racial discrimination occurred therein.
Also following the standard procedure of this court, the trial judge announced that for the selection of the twelve jurors the United States was allowed six peremptory challenges and the defendants were allowed ten peremptory challenges to be exercised collectively among the three defendants. No back striking was allowed. Id. est, once counsel exercised strikes against a given panel, counsel indicated their satisfaction, and the clerk called other potential jurors to replace those stricken, counsel could not subsequently exercise strikes against those jurors called originally and not stricken. Each side was allowed one additional peremptory challenge when an alternate juror was selected from three names drawn after the panel of twelve jurors had been selected.
After the challenges for cause were ruled upon, the first group of twelve jurors was called. The government began the selection process by exercising one challenge, and the defendants exercised two challenges. This alternating pattern was repeated three times with the first panel, resulting in the following selections and strikes:
Name Race Striking Party
Alease L. Hodges Black Government
William L. James White
Peggy Zinkle1 White Defendants
Roberta B. Wright Black Government
Thomas J. Bradley American Indian
James F. Barber White Defendants
Timothy J. Hatton White
William H. Bowser Black
Eugene C. Davenport White
Ruby W. Rile Black Government
Veronica F. Young White Defendants
Margaret J. Patterson Black
The Clerk then called six additional names, and the peremptory challenges continued according to the established procedure, with these results:
Johnny E
Worsley Black
Flora M. Boykins Black Government
Valetta S
Shore White Defendants
Deborah M
Brunick White Defendants
Barbara E
Smith Black Government
Calvin B. Sanders White Defendants
At this point the clerk called five more names. Counsel exercised peremptory challenges, resulting in the following selections and strikes:
Laurie M. Weymouth White
William C. Cox White Defendants
Eileen B
McSweeney White
Robin A. Jenkins White
Stephen W.
Jones White Defendants
Next the clerk called two more names, and the defendants exercised one strike with this result:
Paulette E.
Mathews White
Constance Marshall White Defendants
At this time the clerk called one more name. Neither party exercised a peremptory challenge; therefore, the panel of twelve jurors was completed as follows:
Name Race Striking Party
Milan W.
Kitchen White
The clerk called three names for alternate jurors. The government exercised its strike first, followed by the defendants' counsel, with these results:
Marie M.
Brown White Government
Lewis J. Lowe Black Defendants
John J. Skura2 White
Of the 36 jurors in the venire on May 16, 1986, the juror qualification questionnaires which are a part of the record show that nine were black, one was an American Indian, and 26 were white. Of the twelve jurors actually selected, three were black, one was an American Indian, and eight were white. Thus the percentage of black jurors impaneled is identical to the percentage of black jurors in the venire. At the completion of the selection of the original panel of twelve, the clerk drew Lewis J. Lowe's name as a potential alternate juror. Lowe was the last black person in the venire. The government exercised the first strike from the three potential alternate jurors, striking a white woman and leaving Lowe. The defendants exercised their final strike against Lowe. Previously the defendants had objected to Lowe for cause; the court denied their objection for cause. Lowe's son-in-law was an FBI agent, and Lowe had an account at the bank which was robbed.
After the jurors had been selected and had retired to the jury room, defense counsel objected to the government's exercise of its peremptory challenges because the government had stricken five black jurors. Based upon the law in effect at the time of trial, the court overruled the defendants' objections because there was no showing that the peremptory challenge system as a whole was being perverted. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); United States v. Whitfield, 715 F.2d 145 (4th Cir.1983). Of course, those cases have been overruled by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Consequently, this court shall now reexamine the facts available from the trial record and those facts admitted at the evidentiary hearing and at later oral arguments in order to determine whether the government has come forward with rebuttal evidence sufficient to overcome the prima facie case of intentional discrimination against black jurors established by the defendants at the evidentiary hearing on May 26, 1987.
Following one of the illustrative examples of Batson, the court issued, on May 26, 1987, a bench ruling on the issue of the prosecutor's having challenged five consecutive black jurors and whether this fact gave rise to an inference of discrimination. The court found that the defendants had established a prima facie case of intentional discrimination against black jurors. Once the defendants have made a prima facie showing, the burden shifts to the government to come forward with a neutral explanation for challenging black jurors. Batson, 106 S.Ct. at 1723. Recognizing that its requirement may in some cases impose a limitation on character of the peremptory challenge, the Supreme Court then emphasized that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. Batson, 106 S.Ct. at 1723. The Court further instructed that the prosecutor may not rebut the defendants' prima facie case of discrimination "by stating merely that he challenged jurors of the defendant's race on the assumption — or his intuitive judgment — that they would be...
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