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Card v. United States6/28/2001
thout objection, released the remaining venire and the proceedings broke for a much-delayed lunch. Immediately after the lunch break, the trial judge returned to the issue of Batson challenges with respect to the peremptory strike of Juror 333. At that point, defense counsel clearly made alternative arguments for the challenge of the prosecutor's peremptory strike of Juror 333: 1) the prosecutor's explanation for striking Juror 333 on the basis of his appearance (bow tie, closely cropped hair and white shirt) was pretextual because Juror 1, who had not been struck, also had close cropped hair and wore a bow tie, and 2) the race-neutral reason given by the prosecutor for striking Juror 333, that he was a Muslim, was itself improper. Other defense counsel joined the objection, emphasizing the impermissible religious basis for the strike and, at one point, further suggesting that, with respect to Islam, discrimination on the basis of religion also amounted to race discrimination. Based on this record, I conclude that defense counsel objected that the strikes were impermissible as soon as the prosecutor's attempt to give a race-neutral explanation for his strikes revealed a religious basis. As these objections were made before the jury was sworn, they were timely. See Tursio v. United States, 634 A.2d 1205, 1209 (D.C. 1993).
Second, defense counsel's objections were of such nature and specificity as to put the issue squarely before the trial court. Although, at the time of trial in this case, neither the Supreme Court nor this court had extended Batson beyond race-based challenges, we had given strong indications supporting that proposition. In a case in which the defendant had requested that all Catholics be stricken from the jury on the ground that no Catholic could fairly judge the credibility of the priests who were the victims of the crime, we held that
prospective juror who is otherwise competent to serve on a jury may not be disqualified merely because of religious belief or status. The mere potentiality for bias based on religious affiliation cannot justify the elimination of a prospective juror. Only the demonstration of an actual bias may provide such a justification. Coleman v. United States, 379 A.2d 951, 953 (D.C. 1977) (citation omitted).
We also adopted the same argument that appellant makes in this case, that the position that all members of a religion should be excluded is "`suspect' under the `equal protection' provisions of the Constitution." Id. at 954 (citing Ristaino v. Ross, 424 U.S. 589, 596 n.8 (1976)). Defense counsel in this case, rather presciently, used the term Batson "generically," much as we do today, as encompassing various types of impermissible discrimination in the jury selection process, not as referring solely to race. No doubt the majority is correct that defense counsel did not present the trial court with the "finely honed" argument presented on appeal. That is true in most cases, as few trial counsel have the luxury of time and reflection, in the heat of an ongoing pre-trial proceeding, that is available on appeal. Defense counsel were reacting on the spot to the prosecutor's unfolding explanations. It would be difficult, however, to miss the intensity of counsel's objections, which not only castigated the prosecutor, but took the unusual, and perhaps risky, additional step of expressing "shock" at the trial court's view of the law on the subject of religion-based peremptory strikes. Moreover, the legal basis for counsel's challenges was broadly presented to the trial court. Counsel's objections were framed in terms of references to the "Muslim religion or Muslim practice," "people of the Muslim religion" and "belong to a certain religious gr
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