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Juror 333, Michael Justice, was waiting in the courtroom of D.C. Superior Court Judge Herbert Dixon Jr. for jury selection to end. Then he caught the attention of Assistant U.S. Attorney G. Paul Howes. For two days, Justice, a 33-year-old African-American, had come to court wearing a bow tie and white shirt. He also had close-cropped hair. To the prosecutor, Justice looked like a supporter of Minister Louis Farrakhan, the leader of the Nation of Islam. Such an individual, Howes believed, would not help the government secure convictions against the six African-American defendants, accused in the kidnapping and murder of a rival drug dealer. Without even questioning Justice, Howes used one of his peremptory challenges to kick him off the jury panel. Dixon sent Justice home. On appeal, the three defendants who were convicted argued that Dixon made a reversible error by allowing the government to remove Justice for religious reasons. Late last month, in a 2-1 decision, the D.C. Court of Appeals upheld the convictions but sidestepped the sensitive question of race, religion, and juries in the District. Judges John Steadman and John Terry concluded that defense counsel did not properly raise the religious objection at trial, a point that dissenting Judge Vanessa Ruiz strongly disagreed with. “Particularly in this case, where the prosecutor’s explanations for striking juror 333 slipped and slid between two suspect classifications, race and religion, and where religion-based discrimination based on membership in the Nation of Islam necessarily implied race as well, the trial court should have been particularly alert to the potential for unconstitutional discrimination in jury selection,” Ruiz wrote, saying she would have reversed the convictions of Javier Card, Jerome Evans, and Antoine Rice. Sandra Levick, a lawyer with the D.C. Public Defender Service who argued the appeal on behalf of Rice, says she will ask the entire appeals court to rehear the case. “We believe the court erred when it concluded that the defense attorneys had not made a sufficient objection to the prosecutor’s use of religion to justify his peremptory strike,” Levick says. John Fisher, head of the U.S. Attorney’s Office appellate division, declines comment. CIVIC DUTY Jury selection and peremptory challenges have long been controversial topics in D.C. Superior Court and courts nationwide. After all, both sides want to make sure that the 12 citizens hearing a case are sympathetic — or at least receptive — to their view. In theory, peremptory challenges are used to empanel a jury that will fairly analyze the testimony and evidence. In practice, such challenges allow each party to shape the jury in a fashion more favorable to its needs. For the government, it means removing individuals who note that they’ve had a bad experience with the police. A defense lawyer representing an accused burglar wants to make sure that the head of the local neighborhood watch program doesn’t make it into the jury box. In 1986, the U.S. Supreme Court in Batson v. Kentucky ruled that it was unconstitutional for lawyers to use race as the sole reason to dismiss African-Americans from a jury pool. That ruling was later expanded to include women and whites. Despite the Supreme Court’s ruling, race is still the ultimate factor in the courtroom during jury selection. But as long as lawyers can give the judge a race-neutral reason for dismissing someone, the judge will normally accept it. “The bottom line is no one is ever going to agree that you should be able to base [strikes] on race,” says Kathleen Clark of the Washington, D.C.-based Council for Court Excellence, who has studied the D.C. jury system. “But we’ve found that it’s common knowledge that’s how they’re used.” STRIKE THREE In the 1993 murder case at issue in Javier Card, Jerome Edwards, Antoine W. Rice v. United States, each side was allowed 24 strikes. One morning, prosecutor Howes used six strikes, three of them against young black men. Defense counsel objected, arguing discrimination under Batson. Howes, in explaining his decisions, told Judge Dixon that he was looking for jurors who were employed or in school. Dixon allowed the strikes. By the end of the day, defense counsel renewed their objection after the government struck three more African-American men. This time, defense lawyers pointed to Justice as an example of Howes’ strikes. Howes explained that Justice’s appearance — “the bow tie and the white shirt and the closely cropped hair” — was similar to that of followers of Louis Farrakhan “who could not be fair to the government. “I would not want to risk putting that kind of prejudice on the jury when the government has to bring the case,” Howes told the court, adding that this was his “gut feeling” because he did not have a chance to question Justice about his beliefs. Dixon found that Howes’ strikes were not race-based, but that his explanation for dismissing Justice was “less than acceptable.” Still, Dixon sympathized with Howes’ answer. “[T]his court is personally aware that there have been several jury trials in this court where there have been 11 to 1 hung Jurors for the very same reason mentioned by [Howes],” Dixon said. Defense lawyer Billy Ponds then launched into a tirade about Dixon’s decision. “[Howes] is saying that he struck the juror because he is Muslim and this first of all, that’s improper,” Ponds said. “It is improper and I’m also shocked when the court condoned that statement, Your Honor.” A number of other defense counsel in the matter raised similar objections. Dixon stuck with his decision. Howes, who is now a partner at San Diego’s Milberg Weiss Bershad Hynes & Lerach, could not be reached for comment. At the court of appeals, the two-judge majority concluded that the defense lawyers had not properly focused their objection on religious discrimination. “[W]e conclude that appellants failed to raise a constitutional challenge to the prosecutor’s religious-affiliation-based strike with sufficient precision to fairly apprise the trial court of the constitutional question before it,” wrote Judge Steadman, noting that neither the D.C. appeals court, nor the U.S. Supreme Court, has ever determined whether the Batson ruling extends to religion-based strikes. By removing a possible constitutional claim, the majority was able to uphold the murder convictions in one of the longest criminal trials in superior court history. The ruling also allowed the majority to steer clear of the controversial practice of striking jurors based on appearance or affiliation. Instead, the majority looked at whether Dixon’s decision violated the more stringent plain error standard, concluding that it did not. Judge Ruiz, who backed her 17-page dissent with nearly the entire transcript of the trial court debate over the removal of Justice, found that the religion issue was clearly before Dixon and that the judge’s error could not be overlooked. “The proper course was to address the issue squarely in the trial court, by questioning the potential juror to establish, first, whether he is a member of the presumed religious group, and, if so, whether his beliefs are such that they disqualify him from serving on this particular jury,” Ruiz wrote. D.C. defense lawyer Veronice Holt, who represented one of the defendants in the 1993 case, says the D.C. appeals court should rehear the case en banc because the issue has wider relevance. “It is an important issue not only for the defendants in this case but for African-American citizens to be able to serve as jurors without exclusion based solely upon a false presumption of bias by the prosecutor,” Holt says. Despite being the center of debate on jury selection, Justice, ironically, is not even Muslim. Justice could not be located for comment, but he told The Washington Post last year that he took to wearing bow ties because he liked how they looked. As for his close-cropped hair, Justice told The Post that his father was in the military, so he had always worn it that way.

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