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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 17-CF-1398

                          MARK BEASLEY, APPELLANT,

                                       V.


                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                 (CF1-5953-15)

                        (Hon. José M. López, Trial Judge)

(Argued June 12, 2019                              Decided November 21, 2019)

      Claire Pavlovic, Public Defender Service, with whom Samia Fam and
Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

      Peter Smith, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney, and Elizabeth Trosman and Michelle Jackson, Assistant
United States Attorneys, were on the brief, for appellee.

      Before BECKWITH and MCLEESE, Associate Judges, and NEBEKER, Senior
Judge.

      Opinion for the court by Associate Judge BECKWITH.

      Concurring opinion but not as to the remedy by Senior Judge NEBEKER at
                                          2

page 15.

      BECKWITH, Associate Judge:        During jury selection at appellant Mark

Beasley’s criminal trial, the government used eight of its ten peremptory strikes

against black jurors. Mr. Beasley appeals his subsequent convictions, arguing that

the trial court erred in determining that he failed to make out a prima facie case of

discriminatory intent based on the government’s use of peremptory strikes. See

Batson v. Kentucky, 476 U.S. 79 (1986). We agree and therefore reverse Mr.

Beasley’s convictions.



                                          I.


      Mr. Beasley was charged with murder, assault, and gun-related offenses

stemming from an incident outside a nightclub. At the start of trial, the court

indicated that it would be using the “Arizona method” for picking jurors, meaning

that, rather than implementing peremptory challenges round by round, each side

would list all ten of its peremptory challenges1 at once and then exchange lists.

After the court reviewed each list, the parties would repeat the process for the four

      1
         “In a trial for an offense punishable by imprisonment for more than one
year, each side is entitled to ten peremptory challenges. In all other criminal cases,
each side is entitled to three peremptory challenges.” D.C. Code § 23-105(a)
(2012 Repl.).
                                           3

alternate seats.2



      Individual questioning lasted three days and resulted in a venire of forty-

eight qualified potential jurors. Sixteen of those potential jurors, or 33% of the

venire, were black. When the parties began exercising peremptory challenges, the

government used eight of its ten challenges to strike black jurors and used another

challenge to strike a Latino juror.3 After reviewing the strike sheets, defense

counsel raised a challenge pursuant to Batson v. Kentucky, 476 U.S. at 89, in which

the U.S. Supreme Court decided that in a criminal case, the use of a peremptory

challenge to strike a prospective juror solely on the basis of race violated the Equal

Protection Clause of the U.S. Constitution. The court completed the process for

the alternate jurors4 and then turned to Mr. Beasley’s Batson challenge.




       2
           Under D.C. Code § 23-105(b) (2012 Repl.), “[i]n addition to those
otherwise allowed, each side is entitled to . . . two peremptory challenges if three
or four alternate jurors are to be impaneled[.]”

       3
          Mr. Beasley asserts that this was the only Latino juror in the venire, and
neither the trial court nor the prosecutor disagreed when defense counsel stated that
the government, in striking one Latino juror, had struck “100 percent of the
Latinos.”

       4
           The government used its two alternate strikes on white jurors.
                                          4

      Mr. Beasley argued that the government used nine of its peremptory strikes

“for people of suspect classifications, eight African American and one Latino.” He

asserted that “[e]ight African Americans based on my calculations is roughly 50

percent of the African Americans who are in the entire venire” and “100 percent of

the Latinos.” In response, the prosecutor acknowledged having struck eight black

jurors, summarized the racial breakdown of Mr. Beasley’s own peremptory

strikes,5 and noted that the defense struck two of the same black jurors: “So if you

take away the very two that they struck, we struck . . . six black people, three white

people, and one Latino individual.”           Defense counsel reiterated that the

government “used 90 percent of their preemptory [sic] challenges to strike people

of color” and argued, “I think that’s all I need to do to establish a prima facie case

regardless of whether I struck them or not.” After hearing further arguments from

both sides, the court asked the prosecutor how many black jurors it struck, “not

including the ones that overlap.” The prosecutor responded “six, excluding the

two that overlap.” The court then stated that Mr. Beasley had not established a

prima facie case and that the court would not “pursue it any further.” Mr. Beasley

was subsequently convicted on all counts.




      5
          Mr. Beasley struck seven white jurors and five black jurors.
                                         5

                                          II.


      On appeal, Mr. Beasley contends that the trial court erred in concluding that

he had not established a prima facie case of discriminatory purpose under Batson.

Relying primarily upon our recent decision in Haney v. United States, 206 A.3d

854 (D.C. 2019)—which concluded that a sizable statistical disparity in the

government’s use of peremptory strikes alone could establish a prima facie case of

discrimination, see id. at 861—Mr. Beasley argues that the disparity here was more

glaring than that in Haney. The government counters that numbers alone are not

enough to satisfy the first step of Batson 6 and highlights what it views as Haney’s

very different circumstances making it inapplicable to this case.


      An attorney may not use peremptory challenges to engage in purposeful

discrimination on the basis of race, gender, or both. See Batson, 476 U.S. at 88

(race); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143–44 (1994) (gender);

(Edward) Robinson v. United States, 890 A.2d 674, 680–81 (D.C. 2006) (race and

gender). The Supreme Court has devised a three-part framework for analyzing a


      6
        We issued our decision in Haney after the government filed its brief in this
case. Mr. Beasley discussed Haney’s application to this case in his reply brief, and
the government addressed Haney at oral argument.
                                          6

claim of discrimination in violation of Batson and its progeny.            First, the

defendant7 has the burden to establish a prima facie case by showing that “the

totality of the relevant facts gives rise to an inference of discriminatory purpose.”

Johnson v. California, 545 U.S. 162, 168 (2005). If such a showing is made, the

burden then shifts to the government to offer race-neutral bases for the strikes. Id.

The trial court then “must determine whether the prosecutor’s stated reasons were

the actual reasons or instead were a pretext for discrimination.”          Flowers v.

Mississippi, ––– U.S. ––––, 139 S. Ct. 2228, 2241, 204 L.Ed.2d 638 (2019). At

step one—the facet of the Batson analysis at issue here—“the burden of

establishing a prima facie showing is not onerous.” Little v. United States, 613

A.2d 880, 885 (D.C. 1992). Whether a defendant has met that burden is a question

of law that we review de novo. 8 See Haney, 206 A.3d at 860; Little, 613 A.2d at


      7
         Though Johnson uses the term “defendant,” the government may also
challenge the defendant’s use of peremptory strikes under Batson. See Georgia v.
McCollum, 505 U.S. 42, 59 (1992).

      8
          While Mr. Beasley and the government agree that our review is de novo,
the government also suggests at one point that we must afford deference not only
to the trial court’s factual findings, but to its ultimate ruling on whether the prima
facie showing was made. This contention, originating from Little, 613 A.2d at
885, and appearing in subsequent cases as well, see Jefferson v. United States, 631
A.2d 13, 17 (D.C. 1993), relies on the following language from Batson: “We have
confidence that trial judges, experienced in supervising voir dire, will be able to
decide if the circumstances concerning the prosecutor’s use of peremptory
challenges creates a prima facie case of discrimination against black jurors.” 476
                                                                        (continued…)
                                         7

885.


       Haney governs our decision here. Though the government relies upon our

statement in Little that “numbers alone are not sufficient [to either] establish or

negate a prima facie showing,” 613 A.2d at 886, Haney cautioned that “focusing

on those words in isolation can be misleading” and characterized Little as

highlighting what a necessarily fact-intensive endeavor it is to make out a prima

facie case, see Haney, 206 A.3d at 860–61. When viewed in context, “[n]umbers

can provide powerful circumstantial evidence of discriminatory intent,” id. at 861,

and can reveal suspicious statistical disparities of a magnitude sufficient to

establish a prima facie case. See id. (citing cases); Tursio v. United States, 634

A.2d 1205, 1210 (D.C. 1993) (concluding that statistics, including the percentage

of strikes used and the composition of the venire, made the numbers “particularly

significant” for the purposes of establishing a prima facie case); see also Miller-El

(…continued)
U.S. at 97. This comment was not part of a statement or analysis of the standard of
review, but conveyed the Supreme Court’s trust in the trial courts’ ability to figure
out what circumstances beyond the “merely illustrative” examples offered by the
Court itself might give rise to an inference of discrimination. See id. The Court
did not suggest that these determinations were beyond the reach of the appellate
court or subject to a type of deference antithetical to what our cases uniformly
acknowledge is a legal inquiry subject to de novo review. See, e.g., Little, 613
A.2d at 885; Jefferson, 631 A.2d at 17; (Leon) Robinson, 878 A.2d 1273, 1283
(D.C. 2005); Haney, 206 A.3d at 860.
                                          8

v. Cockrell (Miller-El I), 537 U.S. 322, 342 (2003) (“In this case, the statistical

evidence alone raises some debate as to whether the prosecution acted with a race-

based reason when striking prospective jurors.”); United States v. David, 803 F.2d

1567, 1571 (11th Cir. 1986) (citing Batson in support of its statement that

“statistics showing discriminatory impact may in themselves constitute a showing

of intentional discrimination”).



      In Haney, fourteen of the thirty-six people in the venire were black, and the

government used seven of its nine9 peremptory challenges to strike black jurors.

206 A.3d at 861. In other words, the government used 78% of its strikes against

39% of the venire. Id. In Mr. Beasley’s case, the government used 80% of its

peremptory strikes against black jurors, a group that comprised approximately 33%

of the venire.10   As in Haney, the record here therefore “reveals a ‘sizable

statistical disparity and a discriminatory impact against black [jurors]’” that should

have prompted the trial court to acknowledge that a prima facie case was made and

move on to the second Batson step. Id. (alterations in original) (quoting (Leon)
      9
         “Each side was allotted ten peremptory strikes and one strike for selecting
alternates,” but the government elected to use only nine of its strikes. Haney, 206
A.3d at 858.

      10
         The disparity becomes plainer still when considering the strike against the
Latino juror: the government used 90% of its strikes against black and Latino
individuals, a group that comprised approximately 35% of the venire.
                                          9

Robinson v. United States, 878 A.2d 1273, 1285 (D.C. 2005)).


      The government argues that the composition of the seated jury is an essential

consideration in determining whether a defendant has established a prima facie

case and that there is no evidence, for example, that Mr. Beasley was tried by a

jury with no black members. We have taken note in some cases when certain

classes of people have been totally excluded from a jury through the government’s

use of strikes. See Haney, 206 A.3d at 861 (noting no black males served on the

jury); (Leon) Robinson, 878 A.2d at 1282–85 (listing as one factor that established

the prima facie case that all six of the eligible black female jurors were eliminated).

But we have never signaled that this factor was dispositive, and we have concluded

even in the face of such evidence that no prima facie case was made.               See

(Edward) Robinson, 890 A.2d at 683–85 (holding that the government’s strike

against the only young black male juror, where the defendant was a young black

male, was insufficient to establish a prima facie case). While the total exclusion of

a class of people may be powerful evidence of discrimination, it is just one type of

the “wide variety of evidence” that may establish a prima facie case.11 See id. at


      11
           That the trial court in Haney employed a different procedure for
peremptory strikes also is not a compelling basis for distinguishing Haney from the
present case. Although Haney stated that “there seemed to be a pattern” in that the
government used its first six strikes against black jurors, 206 A.3d at 861, neither
                                                                      (continued…)
                                            10

683; cf. Jefferson v. United States, 631 A.2d 13, 20 (D.C. 1993) (“[I]f the

defendant’s only supporting contention is that the resulting jury was

disproportionately composed, the defendant must show the composition of the

venire or jury.”) (emphasis added). In the end, excluding even one member of the

venire on the basis of race would violate the Equal Protection Clause. See Batson,

476 U.S. at 86; see also Flowers, 139 S. Ct. at 2241 (“In the eyes of the

Constitution, one racially discriminatory peremptory strike is one too many.”);

Tursio, 634 A.2d at 1212 n.7 (“[R]ace is an impermissible factor, even if a minor

one, in exercising peremptory strikes.”).



      Finally, the government conceded at oral argument that on this record, where

the reasons for the government’s and Mr. Beasley’s strikes of the same two black

jurors were not readily apparent, the overlap was not a valid basis for subtracting

two jurors from the step-one analysis of the government’s strikes. As stated in

Batson, a defendant may establish a prima facie case “solely on evidence

(…continued)
the method used for exercising peremptory challenges in this case—exchanging
lists of all ten strikes—nor the fact that the sole strike against a white juror was the
fifth one listed makes the statistical disparity any less suspect than if the strikes had
been exercised on an alternating basis. See Miller-El I, 537 U.S. at 342
(“Happenstance is unlikely to produce this disparity.”). We did not suggest in
Haney that the observation regarding the apparent pattern was essential to the
conclusion that a prima facie case had been established.
                                         11

concerning the prosecutor’s exercise of peremptory challenges at the defendant’s

trial.” 476 U.S. at 96 (emphasis added). The Supreme Court and other courts have

frequently found the defense’s use of strikes to be inconsequential to the first step

of the Batson inquiry, where the focus is on the extent to which the prosecutor’s

actions permit an inference of discrimination.       See, e.g., Miller-El v. Dretke

(Miller-El II), 545 U.S. 231, 255 n.14 (2005) (stating that, though each side

shuffled the jury more than once, “[the defendant’s] shuffles are flatly irrelevant to

the question whether prosecutors’ shuffles revealed a desire to exclude blacks”);

Harrison v. Ricks, 150 F. App’x 95, 97 (2d Cir. 2005) (“[T]he only circumstances

that can ever be relevant when a trial court evaluates the strength of a defendant’s

prima facie case are circumstances that raise an inference of discrimination by the

prosecution.”) (emphasis in original). Though in their briefs both parties put

forward reasons that this overlap of two strikes made it more likely or less likely

that the government removed these two jurors for race-neutral reasons, it is

impossible to know its import without inquiring further and evaluating the

proffered explanations—an endeavor that is the function of subsequent steps of the

Batson analysis, see Haney, 206 A.3d at 862.


      Mr. Beasley provided evidence of a stark statistical disparity in the

government’s use of its peremptory strikes. The trial court erred in concluding this
                                         12

evidence did not raise an inference of discrimination that was sufficient to establish

a prima facie case under the Batson framework.



                                         III.


      The government contends that, if we conclude that the trial court erred, we

should remand and allow the trial court to pick up where it left off at step two of

the Batson analysis. When faced with a step-one error, we must reverse rather than

remand when the government’s justifications for its strikes cannot be “tested

meaningfully.” (Leon) Robinson, 878 A.2d at 1290. This occurs when “no record

was made of the prosecutor’s justifications for his strikes,” and “the written record

contains nothing that would justify [them].” Id. at 1288–89. We have accordingly

advised that “even when the trial court rejects a defendant’s Batson challenge for

lack of a prima facie showing, it still may be desirable for the prosecutor

contemporaneously to memorialize and disclose the reasons for his or her strikes.”

(Edward) Robinson, 890 A.2d at 683. By doing so, the third-step inquiry “might

still be feasible,” (Leon) Robinson, 878 A.2d at 1290, whereas the cost of not

proffering reasons on the record “may be the outright reversal on appeal of the

defendant’s conviction.” (Edward) Robinson, 890 A.2d at 683.


      In this case, the government did not make such a contemporaneous
                                         13

disclosure, but argues on appeal that the “extensive” notes the prosecutors took

during jury selection memorialized their reasons sufficiently enough to permit

meaningful testing despite the long passage of time. Our recent decision in Haney

is again instructive. The court there held that reversal, not remand, was necessary

even when the government did proffer contemporaneous reasons for its strikes on

the record. 206 A.3d at 862–64. It reached that conclusion for two reasons. First,

the prosecutor failed to provide a justification for one of the jurors it struck. And

second, at least two of the justifications the prosecutor offered related to a juror’s

demeanor, and no contemporaneous findings could provide a basis for evaluating

the accuracy of these claims. Id. at 863–64.


      In Mr. Beasley’s case, the government made no contemporaneous proffers

regarding its strikes of any of the jurors. And though the government now proffers

information gleaned from the prosecutors’ trial notes regarding its reasons, that

information is not in the record before us.12 The government further acknowledges

that three of its strikes “lacked any obvious justification,” suggesting that its

      12
          The government presents this extra-record information in its brief—filed
before our decision in Haney—to show that a remand would not be futile. But at
oral argument it did not dispute that at least one of its proffered reasons was
demeanor-based, with no contemporaneous record to support it, and one juror was
missing from the proffer entirely. Thus, for the reasons discussed in Haney,
reliance on this proffer would not obviate reversal. See Haney, 206 A.3d at 864.
                                          14

reasons for these peremptory challenges were based on demeanor or other extra-

record information. In the absence of contemporaneous evidence of these reasons,

proceeding with the Batson inquiry at this point “simply cannot replicate the

probing inquiry to which [Mr. Beasley] was entitled.” (Leon) Robinson, 878 A.2d

at 1289. Because more than two years have passed since Mr. Beasley’s trial and

there is no way to meaningfully test the government’s justifications for using 80%

of its strikes on 33% of the venire, reversal is required.


      “In the problem of racial discrimination, statistics often tell much.” Tursio,

634 A.2d at 1213. Despite a significant statistical disparity in the government’s

use of peremptory challenges, the trial court here precluded further inquiry into

what motivated those strikes because, in its view, Mr. Beasley had failed to make a

prima facie showing of discriminatory intent. Under our recent decision in Haney,

this was error, and resumption of the Batson proceedings is not feasible. We

therefore reverse Mr. Beasley’s convictions and remand the case for further

proceedings consistent with this opinion.13




      13
         Mr. Beasley also asserts, and the government agrees, that Mr. Beasley’s
two PFCV convictions merge. Because we reverse all of his convictions due to the
Batson error, we do not need to remand to vacate one of the PFCV convictions.
                                           15




                                                             So ordered.




      NEBEKER, Senior Judge, concurring in all but the remedy of reversal: The

precision with which the majority is now able to show by percentages of an

appearance of high sin in the jury selection by the prosecutor was not presented to

the trial judge. That fact, no doubt, caused the trial judge to stop at the first step of

our Batson analysis and to rule on the threshold issue of a prima facia showing of

race-based strikes. While these percentages may show a strong racial bias by the

prosecutor, they do not create a conclusive presumption of such.              Here, the

government makes what we must assume to be a good faith ability to dispel that

showing. Therefore, we should remand the case or the record for the trial judge to

rule on the verity of these reasons for the strikes. If the government fails to make

that showing the trial court, not this court, should vacate the convictions and permit

a new trial.


      A conviction should not be reversed if an alternative exists to save it. A
                                        16

conviction of murder by a presumptively neutral jury1 represents a substantial

investment in public resources, and is always a case of great significance in our

nation’s capital. (As an aside, I observe that we may tend to treat murder as a

mundane crime because they occur with such frequency in this jurisdiction.)

Surely, a remand would be “just under the circumstances,” see D.C. Code § 17–

306 (2012 Repl.), to attempt a replication of what the majority must concede is a

possibility here. The risk of reversal carries the risk that a murderer may go free

after a neutral jury has convicted him. That is too serious a consequence to be

dismissed, as the majority does, because two years have passed since trial. We

should not treat this murder conviction with a flaw in the jury selection as an

angler does when tossing a trout back because it is small.         In my view all

reasonable efforts to preserve the conviction should be exhausted before the

draconian remedy of reversal is applied. Our duty demands that we remand, not

reverse.




      1
         We must assume that the jury selected was neutral because Batson is
based on a jury selection error and does not question the ultimate neutrality of its
members during trial absent any other reason advanced to question the petite jury’s
composition. See Lockhart v. McCree, 476 U.S. 162, 184 (1986) (“[T]he
Constitution presupposes that a jury selected from a fair cross section of the
community is impartial . . . .” Appellant makes no arguments, and we see none, in
which the trial itself contains reversible error.
