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Card v. United States6/28/2001
sses. However, in 1993 Batson was limited solely to race. Appellants' failure to elucidate the novel manner in which they allegedly proposed that the court apply the reasoning of Batson was therefore critical.
Finally, it is important to recognize the structure of the Batson inquiry in this case, especially since it was pre-J.E.B. Defense counsel, to the extent they raised a prima facie Batson objection to exclusion based on religious affiliation, did so in the context of a continuing argument regarding the trial court's determination of whether the prosecutor's reasons for the peremptory strike were sufficiently race-neutral under the traditional race-based Batson analysis. Again, this understandably masked defense counsel's alleged attempt to raise a new and distinct constitutional challenge under Batson-like reasoning, especially since counsel concluded the argument by reiterating the sentiment that the prosecutor "simply struck [Juror 333] because he was a young, black male similar in age to Mr. Rice, Mr. Edwards, and Mr. Card." As a practical matter, it seems apparent that the trial court did not understand, and fairly so, that it was being presented with a new and completely distinct legal challenge to the constitutional propriety of a strike based on religious affiliation, given that the court made no comment whatsoever on the issue.
In Baxter v. United States, 640 A.2d 714 (D.C. 1994), we emphasized the importance of apprising the trial court of the precise legal argument upon which objections to juror strikes are based. Only then will the trial court be in the position to address the issue squarely, make any necessary further investigation and findings, and take corrective action as may be appropriate. In Baxter, the defendant on appeal sought to establish that improper strikes had been made on the basis of age and sex discrimination. Id. at 717. This court concluded that even though the trial court had commented on the propriety of age discrimination, the issue simply had not been sufficiently differentiated from the race-based Batson ground or exclusion of "young black males" argued to the trial court to preserve it for appeal. Id. Since the appellant in Baxter "did not raise the allegations of age and gender discrimination with the reasonable specificity necessary to fairly apprise the trial judge of those objections," we reviewed only for plain error. Id. A like situation is presented here.
The necessity for a particularly demanding standard requiring counsel to articulate clearly the parameters of a given Batson-like challenge, especially on a novel ground not previously addressed, is demonstrated here. The voir dire process itself in this trial occupied a full month. The trial itself took an additional five months. Plainly, it was imperative that any problems with the composition of the jury should, if at all possible, be resolved prior to the commencement of the trial since any error of a Batson type mandates reversal without regard to any actual trial prejudice to a defendant. See supra note 3. Furthermore, for example, if counsel's objection based on religious discrimination had been front and center, the opportunity could have been afforded to examine at the time, in further detail, an issue that now splits appellants and prosecution; viz., whether in fact what is presented here is religious discrimination or simply political discrimination, arguably governed by a different test. (The prosecutor here never used any phrase plainly religious in nature, speaking only of the followers of a particular individual.) Likewise, more clearly alerted to the nature of the new problem, the trial court could have directed a more focused inquiry into the actual factual situation vi
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