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Card v. United States6/28/2001
lied Batson to any category other than race. Each side was given twenty-four peremptory strikes, which they began to exercise on a Wednesday morning after a month of jury selection. By lunchtime, the prosecution had used six strikes, three of them against black males under thirty years of age. Using this fact as evidence of a prima facie case, and arguing that the three young black male defendants would not be able to get a "jury of their peers," appellants' counsel made a Batson objection to the exclusion of "black jurors and in particular young black male jurors." Under Batson, "once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination." Purkett v. Elem, 514 U.S. 765, 767 (1995). Accordingly, the trial court asked the prosecutor to offer explanations for the three challenged strikes. The prosecutor did so, stating, in part, that he typically sought jurors who were employed or in school. The trial court concluded that there was no Batson violation, and the peremptory strike process resumed.
The government completed its peremptory strikes on Wednesday afternoon, exercising three more of them to eliminate black male jurors. These jurors were ages twenty-two, thirty-three, and thirty-six, respectively, and two of them were employed. The second of these strikes was of Juror 333. At the end of the day, counsel renewed the Batson objection, arguing that the prosecutor's strikes of employed black males exposed the race-neutral explanation he had given earlier for striking black males as a mere "pretext" for racial discrimination. Argument on this point continued into the Thursday morning session. Throughout, defense counsel consistently stressed that the objection was not to any particular strike but rather to systematic exclusion of black males "overall" and the "net effect of the entire pattern and practice." As an example, however, counsel cited stricken Juror 333 as a good citizen with whom the "only thing wrong . . . is that he is a young, black man."
After some debate about inclusion of the thirty-three and thirty-six year-old jurors in the "young black male" category, resolved in favor of inclusion by the trial court, the court asked the prosecutor to explain the three most recent strikes of young black males. As to Juror 333, a thirty-three year old employed black male and the subject of the only strike at issue in this appeal, the prosecutor explained that he had stricken Juror 333 because, although there was "no indication on the record" of his religious or political affiliation, the fact that Juror 333 had close cropped hair and was wearing a white shirt and bow tie suggested to him that Juror 333 might have an "affiliation with those people who follow Louis Farrakhan who could not be fair to the Government."
The explanations complete, the trial court turned its attention back to defense counsel. Appellants' counsel urged that the Batson inquiry be extended to black women, which the court overruled finding no prima facie case, but counsel made no mention whatsoever of the prosecutor's explanation for striking Juror 333. As to the existing Batson challenge, the trial court ruled that it had found no "racially based systematic exclusions of young, black males from the jury." The court reasoned that all but one of the strikes, i.e. the strike of Juror 333, were based on race-neutral "facts, observations, and information and responses obtained during
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