Filed
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`D.C. Superior Court
`12/22/2022 18:04PM
`Clerk of the Court
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`SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
`Criminal Division — Felony Branch
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`UNITED STATES OF AMERICA
`Vv.
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`:
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`Case No. 2022 CF2 1977
`The Hon. Neal Kravitz
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`HARRY TUCKER
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`MEMORANDUM OF LAW ON CAUSE CHALLENGES IN VOIR DIRE
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`Mr. Tucker, through undersigned counsel, pursuant to the Fifth and Sixth Amendment,
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`provides this Court with the latest case law on cause challengesin voir dire to ensure that qualified
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`jurors who hold reasonable doubts about the fairness of the criminal
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`legal system are not
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`improperly dismissed for cause. Many jurors reasonably believe that the criminal justice system is
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`racist and unfair, and the most recent caselaw explains that these jurors can serve, providing a
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`desirable broad array of perspectives for the jury.
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`L
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`Jurors Whose Life Experiences Cause Them to Express Their Awareness of Racism
`in Law Enforcement and the Criminal Justice System are Not Inherently Biased
`Against the Prosecution.
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`Striking a juror for cause solely because of her belief that the criminal justice system is
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`unfair to people of color is a legal error that requires reversal in the District of Columbia. See
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`Mason v. United States, 170 A.3d 182, 187 (D.C. 2017). In reaching this holding, the D.C. Court
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`of Appeals correctly recognized what has long been the standard in federal courts: generalized
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`beliefs about the fairness of the criminal justice system or the state of the law are not on their own
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`sufficient to justify finding bias and dismissing a juror for cause. /d. at 185-87; see also United
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`States v. Padilla-Mendoza, 157 F.3d 730, 733-34 (9" Cir. 1998) (“[A] district court cannot dismiss
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`jurors for cause basedsolely on their acknowledgmentthat they disagree with the state of the law
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`that governsthe case.”); King v. State, 414 A.2d 909, 913 (Md. 1980) (“Wehold thatthe trial court
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`committed reversible error by excluding any juror who expressed a personal belief that the law [at
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`issue] should be changed without inquiring whetheror not that belief would prevent the juror from
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`fairly and impartially deciding the case in accordance with existing law on the evidence
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`presented.”). By reaffirming this well-established concept, the Mason Court undid a discrepancy
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`that would otherwise allowtrial judges to seat jurors who believe the criminal justice system fails
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`to apprehend enough wrongdoers but exclude jurors who believe the criminal justice system is
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`unfair to the people of color who it most often apprehends. It is legal error to dismiss a juror for
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`cause without a clear showing on the record that she cannot be impartial. Doret v. United States,
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`765 A.2d 47, 53 (D.C. 2000). Jurors are expected, encouraged, and empoweredto considertheir
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`own knowledge andlife experiences as they deliberate. See, e.g., Criminal Jury Instructions for
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`the District of Columbia § 2.104 (Sth ed. 2016) (“When you consider the evidence, you are
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`permitted to draw, from the facts that you find have been proven, such reasonable inferences as
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`you feel are justified in the light ofyour experience.” (emphasis added)); Townsend v. District of
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`Columbia, 183 A.3d 727, 732 n.9 (D.C. 2018) (“A juror can rely upon his or her personal
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`experience or otherwise obtained knowledge [to weigh officer testimony on commonly observed
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`signs of intoxication. ]) (internal citation omitted) (emphasis added)). Therefore, it is vital for this
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`Court to recognize that jurors whobelieve the criminal justice system is unfair or express support
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`for the movementfor Black lives are not inherently biased against the government and, absent a
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`specific finding that they are unable to be impartial in the particular case at hand, are perfectly
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`eligible to hear criminal cases.
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`A.
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`The Court Cannot Impute Bias to a Juror Without a Record Showingthat the
`Juror is Unequivocally Unable or Unwilling to Be Impartial in the Case at
`Hand.
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`Though judges otherwise exercise broad authority in how they conduct jury voir dire,
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`imputing bias to a juror without adequate support on the recordis a legal error, Doret, 765 A.2d at
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`53, as is imputing bias to a juror simply becauseshe believes the criminal justice system is unfair
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`to Black people. Mason, 170 A.3d at 187. The D.C. Court of Appeals found that the trial judge in
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`Masonerred by conflating a juror’s acknowledgmentofherbelief that the criminal justice system
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`is unfair to Black people with an inability to impartially apply the law in that particular case. See
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`Mason, 170 A.3d at 187. As Mason recognizes,“[i]t is possible that a potential juror who believes
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`that the criminal justice system is unfair to Blacks might respondto that belief by having difficulty
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`being impartial,” but that belief alone, without “any finding that [the juror] herself would be unable
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`to be impartial,” is not enoughto justify dismissing her for cause. Jd.
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`Masonfinds support for its holding in two drug possession cases: United States v. Padilla-
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`Mendoza and King v. State. See id. In Padilla-Mendoza, the Ninth Circuit held that “a district court
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`cannot dismiss jurors for cause based solely on their acknowledgmentthat they disagree with the
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`state of the law that governs the case” and found that the trial court abused its discretion by
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`dismissing two jurors from a possession case over a defense objection after the jurors explained
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`that they disagreed with the state’s criminalization of cannabis. United States v. Padilla-Mendoza,
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`157 F.3d 730, 733-34 (9th Cir. 1998). Though the Padilla-Mendoza court declined to find that the
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`improper exclusion of those jurors prejudiced the defendant, the Ninth Circuit still recognized that
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`courts may be required to overturn similar cases if the improper exclusion ofjurors is “so egregious
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`that the resulting jury is presumptively biased.” /d. The Court of Appeals in Mason, however,
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`recognized that excluding jurors who believe the criminal justice system is unfair to Black people
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`does indeed “[have] a tendency to unacceptably skew the jury in favor of one side.” Mason, 170
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`A.3d at 187.
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`The Maryland Court of Appeals reached a similar conclusion in King and, unlike the Ninth
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`Circuit, ordered a reversal after two jurors were improperly excluded from participating in a
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`possession case over a defense objection because oftheir belief that cannabis laws are unjust. King
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`v. State, 414 A.2d 909, 912 (Md. 1980). The Court of Appeals faulted the lower court for failing
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`to interrogate whether the prospective jurors’ disagreement with cannabis law rendered them
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`incapable of applying the law as written withoutbias. /d. at 913. Like in Mason, the appellate court
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`reversed the convictions becausethe trial court, in excluding jurors who expressedcriticism of
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`cannabis criminalization, “excluded the entire class of prospective jurors who believed that
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`marijuana laws should be modified” and thus excluded a significant part of the community from
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`serving. /d.
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`The result in Mason relies on the same logical underpinnings as Padilla-Mendoza and
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`King—itis error to disqualify a juror based solely on that juror’s beliefs without showing that
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`those beliefs would irreparably interfere with the juror’s ability to be unbiased. See Mason, 170
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`A.3d at 187. These cases also suggest that the popularity of the belief in question is an important
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`consideration when determining whether the improper dismissal of the juror warrants reversal,
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`because excluding broad swaths of the population may result in a presumptively biased jury. See
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`United States v. Mendoza, 157 F.3d 730, 734 (9th Cir. 1998); Mason v. United States, 170 A.3d
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`182, 186-87 (D.C. 2017); King v. State, 414 A.2d 909, 913 (Md. 1980). Thus, the more popular
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`the belief, the more likely disqualifying a juror for holding that belief warrants reversal. The Court
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`should therefore exercise caution when contemplating whetherto dismiss a juror who,like millions
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`of Americans, joined the George Floyd protests, expressed support for the movement for Black
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`lives, or otherwise recognizes how racism pervadesthe criminal justice system.
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`The most recent case to touch on this issue is People v. Silas, 284 Cal. Rptr. 3d 48, 55 (Cal.
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`Crt App. 1% District 2021). There the appellate court reversed a trial court’s denial of a Batson
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`motion by the defense. A juror had expressed support for Black Lives Matter (BLM) and under
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`further questioning stated she could be fair despite her support for the movement. The prosecutor
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`failed in his motion to strike her for cause and then exercised a peremptory strike against the juror.
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`Whenchallenged, the district attorney provided somerace neutral reasons, and otherjustifications
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`based on the juror’s support for BLM that were belied by the record. In reversing, the appellate
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`court found that the juror’s support for BLM and concern aboutthe fairness of the criminal justice
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`system toward Black people couldn’t even justify the low standard of allowable reasons for
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`peremptory strikes, much less a cause challenge.
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`I.
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`Courts Do Not Expect Jurors to Entirely Divorce Their Personal Knowledge or Life
`Experiences from Their Decision-Making Processes, Even When That Knowledge or
`Experience Causes Them to Express Distrust of the Criminal Justice System.
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`A juror whoselife experiences cause her to doubt the racial fairness of the criminal justice
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`system is no less entitled, instructed, or expected to rely on that experience when evaluating the
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`evidence than any other juror. Far from demandingthat jurors engage in the impossible task of
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`entirely divorcing their decision-making from their lived experiences, D.C. courts instead embrace
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`the fact that jurors bring different experiences to the table, and the pattern jury instructions given
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`in virtually every jury trial in the District encourage jurors to do so. Criminal Jury Instructionsfor
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`the District of Columbia § 2.104 (Sth ed. 2016) (“When you consider the evidence, you are
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`permitted to draw, from the facts that you find have been proven, such reasonable inferences as
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`you feel are justified in the light ofyour experience.” (emphasis added)); see also Townsendv.
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`District of Columbia, 183 A.3d 727, 732 n.9 (D.C. 2018) (“A juror can rely upon his or her
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`personal experience or otherwise obtained knowledge of the effects of alcohol upon one’s motor
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`and mental skills to evaluate and weigh the officer’s testimony [in a driving underthe influence
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`case].” (quoting State v. Murphy, 953 S.W.2d 200, 2020 (Tenn. 1997) (emphasis added)); accord
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`United States v. Seventeen Thousand Nine Hundred Dollars ($17,900.00) in U.S. Currency, 859
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`F.3d 1085, 1093 (D.C. Cir. 2017) (Rejecting the government’s motion for summary judgmentin
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`a civil forfeiture case noting: “Government counsel may well be able to convince judgesthatit is
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`inconceivable someone would chooseto keep sizeable cash savings, to travel with cash, or to pay
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`for routine expenses using cash rather than a credit card, but a jury of laypeople with different and
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`more diverse life experiences might view these very same choices with considerably less
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`suspicion.” (emphasis added)). To hold otherwise is to demandthat jurors act as automatons who
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`are somehow capable of leaving their lived experiences at
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`the courtroom door and risks
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`undermining the validity of the entire legal system by only allowing judges to seat jurors who are
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`either dishonest or incompetent. See Grotemeyer v. Hickman, 939 F.3d 871, 880 (9th Cir. 2004)
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`(“Were we to require the impossible and prohibit jurors from relying on relevant, past personal
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`experience, about all we would accomplish would be to induce jurors to lie about it when
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`questioned afterward, unless we limited jury participation to the most unworldly and ignorant
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`individuals.”); see also State v. Fransua, 510 P.2d 106, 108 (N.M. Ct. App. 1973) (noting thatit
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`is “psychologically impossible” for a juror to “purge his mindofall experience and opinions” and
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`that, instead, jurors simply must “put aside their opinions and enter a verdict based on the evidence
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`presented in court.”).
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`Aninstructive hypothetical, illustrating the difference between actual bias and implied bias
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`in federal courts, is presented by the Third Circuit in United States v. Mitchell. See United States
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`v. Mitchell, 690 F.3d 137, 142 (3rd Cir. 2012). To exemplify whena trial judge must find implied
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`bias, the Mitchell court presents a scenario where the victim of the crime with which the defendant
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`is charged is herself summoned to be part of the jury hearing the case. /d. (internal citations
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`omitted). Though this victim may truly believe that she can be impartial and say as much in
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`response to the court’s voir dire questions, the court is obligated to impute bias to her and strike
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`her for cause because of the “understanding that the average person in hersituation likely would
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`harbor prejudice, consciously or unconsciously” regardless of what she may say to the contrary.
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`Id.
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`(internal citations omitted). The Third Circuit’s hypothetical juror thus helps clarify an
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`important distinction—life experiences that color a juror’s interpretative framework do notin and
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`of themselves require finding that the juror is irreparably biased. The reason for excluding the
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`hypothetical juror is not because ofher lived experienceas a victim of any crime, but because her
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`experience as a victim of this specific crime allegedly committed by this specific defendant makes
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`it impossible for the court to consider her unbiased in this specific case as a matter of law. See id.
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`This principle comports with the recognition in D.C. courts that an imputation of bias is legitimate
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`only when supported by specific factual findings on the record. Doret, 765 A.2d at 53. The lesson
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`of Mason, then, is that just as it is reversible error to fail to impute bias to a juror with a clear
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`conflict of interest—such as personal involvement in the case or a direct attachment to either
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`party—it is likewise reversible error to incorrectly impute bias based solely on a juror’s beliefs,
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`particularly when those beliefs are commonly held, or where the exclusion of those who are most
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`likely to hold them would disproportionately bar members of minority groups from participating
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`in juries. Mason, A.3d at 189-90.
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`Indeed, the principle underlying the recognition the D.C. Court of Appeals made in
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`Townshend—that a “juror can rely upon his or her personal experience or otherwise obtained
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`knowledge” when evaluating evidence during deliberations—haslong been recognized across the
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`federal circuits. Townsend, 183 A.3d at 732 n.9 (internal quotations and citations omitted). For
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`example, in United States v. Budziak, the Ninth Circuit declined to overturn a conviction for
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`distributing child pornography over the internet in a case where some of the more “computer
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`savvyjurors offered alternative explanations for the lack of physical evidence presented against
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`the defendant because “[i]t is well established that a juror’s past personal experiences may be an
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`appropriate part of the jury’s deliberations.” United States v. Budziak, 697, F.3d 1105, 1111 (9th
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`Cir. 2012) (internal quotations omitted) (citing Grotemeyer, 393 F.3d at 879 (no error where a
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`juror cited her medical expertise during deliberations to argue in favor of conviction because the
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`defendant was,
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`in her opinion, mentally ill and would get mental health assistance post-
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`conviction); Price v. Kramer, 200 F.3d 1237, 1255-56 (9th Cir. 2000) (two jurors’ accounts of past
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`negative personal experiences with police officers in a civil suit alleging officer misconduct were
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`neither inappropriate during deliberationsnor, on their own,indicative of bias); Hard vy. Burlington
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`N. RR. Co., 812 F.2d 482, 486 (9th Cir. 1987) (noting that “[j Jurors must rely on their past personal
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`experiences whenhearinga trial and deliberating on a verdict” but remanding for hearing a civil
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`case wherea juror was alleged to have been a former employee of the defendant’s parent company
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`and shared information about the defendant’s settlement practices during deliberations.) '; see also
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`Rucker v. Lattimore, 369 Fed. App’x 810, 813 (9th Cir. 2010) (no error where two jurors
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`“discussed their personal experiences as victims of sexual assault” during deliberations in an
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`attempted murder case involving a jilted ex-lover). Likewise, the Sixth Circuit found no error
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`' After the hearing, the court found that the evidence ofthe juror’s former employment with the
`defendant’s parent company and knowledgeofits settlement practices was inconclusive and held
`separately that it would not be an error for the juror to “assert some knowledge regarding x-ray
`interpretation” during deliberations in this personal-injury tort case because “[i]t is expected that
`jurors will bring their life experiences to bear on the facts of a case.” Hard v. Burlington N. R.R.
`Co., 870 F.2d 1454, 1462 (9th Cir. 1989) (citations omitted).
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`during the penalty phase of a capital case where the deliberating jurors discussed a recent news
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`article about a seventy-year-old individual who committed a murderafter his release from prison
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`because“in the context of such deliberations, the jurors’ general knowledge aboutrecidivism, even
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`if it includes recollections of unrelated news coverage of other crimes,is fair game for discussion.”
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`Thompson v. Robertson-Bey, 867 F.3d 641, 648 (6th Cir. 2017), cert. denied, 138 S. Ct. 1594
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`(2018). In Marquez v. City ofAlbuquerque, the Tenth Circuit similarly held that it was not an error
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`for a juror to share her personal experiences with training police dogs in a civil suit alleging
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`excessive use of force after a police dog bit the plaintiff because “[a] juror’s personal experience,
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`however, doesnot constitute extraneousprejudicial information.” Marquez v. City ofAlbuquerque,
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`399 F.3d 1216, 1223 (10th Cir. 2005) (internal quotations and citations omitted). Nor did the Fifth
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`Circuit find an error when a Spanish-speaking jurortranslated parts of a tape-recording implicating
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`the defendants in a conspiracy to distribute cocaine that other jurors had previously found
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`inaudible, because “it is beyond dispute that jurors may bring their own personal experiences and
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`knowledgeto bear.” United States v. Gonzales, No. 92-2118, 1993 WL 185718, at *7 (Sth Cir.
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`May18, 1993).
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`The same way a juror may consider relevant personal experiences about technology, mental
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`health, police and policing, sexual assault, recidivism, police dogs, or a foreign language, so too
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`may a juror whose knowledge and experiences lead her to doubt the racial fairness of the criminal
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`justice system competently consider the evidence in a criminal case. Indeed, as M/ason recognizes,
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`such a juror may very well “be particularly attentive to making sure that they perform their function
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`impartially.” Mason, 170 A.3d 182 at 187.
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`II.
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`Because of the Prevalence of the Belief That the Criminal Justice System is Racially
`Unfair and the Importance of Maintaining the Legitimacy of the Criminal Justice
`System, Striking Jurors Based on Their Beliefs Creates an Appearance of Racial Bias
`Even if There is No Intentional Discrimination.
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`Because of the prevalence of the belief that the system is unfair to Black people,
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`particularly among Black people themselves, and the numerous“courts and other official bodies
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`[that] have repeatedly expressed the same concern,” the Mason Court found it immaterial that
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`neither the trial court nor the prosecutor displayed any signs of outright discrimination in
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`dismissing for cause the juror who expressed this belief. Mason, 170 A.3d at 190. Instead, the
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`Court focused on how a contrary holding “could have a disparate impact on Black potential jurors”
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`and justified that focus by pointing to other cases and institutions that expressed the broader
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`principle that “‘[t]he public suffers whenever the appearanceofracial bias goes uncorrected in the
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`courthouse.’” Mason, 170 A.3d at 190 (quoting United States v. Madeoy, 912 F.2d 1486, 1491
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`(1990)); see also, State v. E.J.J., 183 Wash. 2d 497, 510-513, 354 P.3d 815, 821-823 (2015)
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`(Madsen, C.J., concurring) (citing a Department of Justice complaint against the Seattle Police
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`Departmentfinding “alarmingstatistics regarding SPD’s [disproportionate] use of minor charges”
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`against minorities and the mentally ill to argue that the court should add a commonlaw requirement
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`to Washington State’s obstruction statute because “[w]e have an obligation to promote confidence
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`in the courts and ourjustice system.”) (cited by Mason), In re Charges of Unprofessional Conduct
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`Contained in Panel File 98-26, 597 N.W.2d 563, 567-68 (Minn. 1999) (per curiam) (overturning
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`a finding by the Lawyers Professional Responsibility Board that a prosecutor’s racist motion to
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`disqualify a Black attorney from representing the defendant was “non-serious” because “such
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`racially-based actions as we have here not only undermine confidence in our system ofjustice, but
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`also erode the very foundation upon which justice is based.”) (cited by Mason).
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`The Mason Court thus concluded that because so many Black people share the belief that
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`racism exists in the criminal justice system, allowing judges to dismiss for cause people whohold
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`such beliefs “could create reasonable concerns aboutthe fairness of the judicial system.” Mason,
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`170 A.3d at 190. Though neither the Court nor Mr. Mason himself argued that disqualifying the
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`juror in question wasitself racially motivated, comparing the statements of the juror who was
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`dismissed for cause to those of a juror who was notraises such “reasonable concerns” about
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`fairness even within the Mason caseitself. /d. at 186 n.1. The statement of the juror who was
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`erroneously dismissed reads:
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`“T mean I think I can be impartial. I mean I think it’s shaped my view ofthe world.
`But I don’t knowthe details of this case. I don’t think I would see my brotherinit.
`His situation is different. But I definitely, that’s my experience with the system.”
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`Id. at 185. Meanwhile, the statement of a potential juror whose father was murdered during a
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`robbery and whothetrial court declined to dismiss for cause on a defense motion said virtually
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`the same thing, replying, when she was asked whether she could be impartial:
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`“T don’t think so. [I]t’s hard to say.... I would hope that it wouldn’t. But I couldn’t
`definitively tell you no,
`it won’t affect my judgment or anything. Because,
`unfortunately, life experiences do affect your judgmentat times.”
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`Id. at 188 (brackets andellipses in original). The trial judge only took issue with the potential juror
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`whose life experience caused her to doubt whether the criminal justice system is fair to Black
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`people, but when a more government-friendly potential juror used essentially the same language
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`to characterize her own life experiences and potential biases against the defendant, the trial judge
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`saw noerror. The discrepancy between these exchangesreflects exactly the type of unfairness that
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`Mason seeks to undo. See id. at 190.
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`But the discrepancy the Mason opinion remedies is far from uncommon, and further
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`support for the Court’s holding is found in the numerouscases recognizing Mason’s inverse—
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`jurors who express negative attitudes about crime and criminality in general are not inherently
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`disqualified from serving on juries. See United States v. Tegzes, 715 F.2d 505, 507-08 (11th Cir.
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`1983) (listing cases and noting that “bias or prejudice towards crime doesnot disqualify one tosit
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`as a juror in a criminal case so long as those feelings do not lead to a predisposition toward the
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`prosecution or accused.”); see also United States v. Hines, 943 F.2d 348, 535 (4th Cir. 1991) (no
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`error in drug possession case wheretrial judge denied defense motion to dismiss a juror for cause
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`who explained that her experience working in a chemical dependency unit gave her a negative
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`view towardsdrugs and drug users); United State v. Murray, 618 F.2d 892, 899-900 (2d. Cir. 1980)
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`(no error in drug distribution case where the court denied a defense motion to dismiss a prospective
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`juror for cause after “she stated that she was ‘against drugs,’” “had ‘a nephew whowason drugs,’”
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`and “could not ‘guarantee’ that her feelings about drugs would not affect her judgment in the
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`case.”’).
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`These cases demonstrate that the Mason Court’s concerns about the impact of excluding
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`jurors who believe the system is unfair to Black people are well-placed. If a disproportionate
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`numberof Black jurors whohold this view are excluded, even while jurors who hold biases against
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`crime and criminality are seated, then the system is indeed unfair to both the Black people it most
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`often accuses of crimes and the Black people it prevents from hearing criminal cases. Additionally,
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`taken together, these cases show that improperly dismissing a juror is morelikely to lead to a
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`reversal than improperly denying a motion to removea juror.It is therefore vital that this Court
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`use caution in weighing whethera potential juror who recognizes the unfairness of the criminal
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`justice system is indeed prejudiced in favor of the defendant.
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`IV.
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`Skepticism of Government is an Ideal Quality for Jurors and Should Not Meet
`Opposition from Prosecutors.
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`A potential juror who expresses skepticism of the fairness of the criminal justice system
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`may very well be more attentive to her obligation to be impartial than other potential jurors who
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`all too often place blind faith in the statements of governmentofficials. Mason, 170 A.3d at 187.
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`Since a prosecutor’s obligation is not simply to advocate for the harshest sentence or “win” the
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`government’s case, but to serve the government’s interests in justice, fairness, and preserving the
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`legitimacy required to govern in thefirst place, prosecutors should in fact wantto seat jurors who
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`believe the system is unfair to Black people rather than work to exclude them. See, e.g., Berger v.
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`United States, 295 U.S. 78, 88 (1935) (“The United States Attorney is the representative not of an
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`ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as
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`compelling as its obligation to govern at all; and whoseinterest, therefore, in a criminal prosecution
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`is not that it shall win a case, but that justice shall be done.”). The prosecutor’s goal during jury
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`voir dire, then, is not to impanel the jury that is most likely to convict the defendant, but to impanel
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`the jury that is most likely to be impartial. A prospective juror whois skeptical of the racial
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`outcomes of the criminal justice system is thus the ideal Juror, because she is more likely than
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`others to consider the evidence impartially and overcome our natural tendency to take authority
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`figures at their word. If anything, prosecutors should actively support impaneling such jurors and
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`relish the opportunity to prove to them, andto the significant number of Americans who share
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`their view that the criminal justice system is unfair to Black people, that the government’s interest
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`is indeed to ensure “the twofold aim... that guilt shall not escape [n]or innocence suffer.” Jd.
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`Respectfully submitted,
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`Ne
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`Varsha Govindaraju (Bar No. 1741026)
`Counsel for Mr. Tucker
`The Public Defender Service for D.C.
`633 Indiana Avenue, NW
`Washington, D.C. 20004
`Phone: 202-824-2480
`
`13
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing filing has been served by e-filing upon the United
`States Attorney’s Office for the District of Columbia on December 22, 2022.
`
`(ode
`
`Varsha Govindaraju (Bar No. 1741026)
`Counsel for Mr. Tucker
`
`14
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