Card v. United States6/28/2001
sed reason); see also State v. Pepper, 855 S.W.2d 500, 503 (Mo. Ct. App. 1993) (striking black postal worker based on political beliefs inferentially held by all postal workers was a race-neutral explanation).
To be sure, further inquiry could have been made of the juror. However, the Supreme Court made it clear in a per curiam summary reversal that the prosecutor's explanation need not be "persuasive or even plausible. . . . . he issue is the facial validity of the prosecutor's explanation. " Purkett, supra, 514 U.S. at 765. At this second stage of the Batson inquiry, the issue is not whether the reason makes sense but whether on its face, it denies equal protection. Id. at 769 It is not until the third step that the persuasiveness of the justification may become relevant - the step where the trial court must determine the genuineness of the explanation and where an "implausible or fantastic" explanation may well be found a pretext for purposeful discrimination. Id. at 768. That is not the case before us. In sum, on this record, we cannot depart from the "great deference" granted to the trial court and to its effective determination that the strike, based upon an inferred allegiance to Louis Farrakhan, related to a genuine race-neutral concern regarding the potential juror's desire to hamstring any possible conviction.
III. Alleged Trial Errors
A. Giglio, Brady, and Jencks Act Violations
Appellants next contend that the prosecutor committed various Brady, Giglio, and Jencks Act violations by failing to adequately disclose evidence. Brady and Giglio require the government to disclose evidence which is both exculpatory to a defendant and material to guilt or innocence, including " vidence that an accused can use to impeach a government witness," Brown v. United States, 726 A.2d 149, 156 n.3 (D.C. 1999), cert. denied, 528 U.S. 1130 (2000), and prohibit prosecutors from knowingly putting forth false testimony, Bruce v. United States, 617 A.2d 986, 992 (D.C. 1992), cert. denied, 507 U.S. 1042 (1993).
Even assuming nondisclosure, however, the evidence is not "material" and reversal is not warranted "absent a further showing that `disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable,'" Farley v. United States, 694 A.2d 887, 889 (D.C. 1997) (quoting Kyles v. Whitley, 514 U.S. 419, 441 (1995)) (exculpatory evidence under Brady), aff'd after remand, 767 A.2d 225 (2001); United States v. Huddleston, 194 F.3d 214, 222 (1st Cir. 1999) (impeachment evidence under Giglio), or unless "`the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury,'" McNeil v. United States, 465 A.2d 807, 810 (D.C. 1983) (quoting Giglio, supra, 405 U.S. at 154). "In this context, ` "reasonable probability" is a probability sufficient to undermine confidence in the outcome.'" Farley, supra, 694 A.2d at 889 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). We evaluate the materiality of the evidence at issue on a cumulative basis. Kyles, supra, 514 U.S. at 436. However, delayed disclosure of exculpatory or impeachment evidence (as opposed to an outright failure to disclose) will require reversal only if an appellant establishes prejudice from the delay itself. See Bellanger v. United States, 548 A.2d 501, 503 & n.6 (D.C. 1988) (citing United States v. Ingraldi, 793 F.2d 408, 411-12 (1st Cir. 1986) (due process requirements met where Brady material disclosed after beginning of trial, if accused not prejudiced in preparing and presenting his case)); see also Norris v. Schotten, 146 F.3d 314, 334 (6th Cir.), cert. denied, 525 U.S. 935 (1998) (Brady does not generally apply to "
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