Criminal Law Blog

2019: The (Early) Year In Review (Part 2)


Right to a Jury Trial

Miller v. U.S., 13-CM-628 (decided June 6, 2019) –

  • Holding: Failure to provide a jury trial for a deportable offense was plain error in light of Bado v. U.S., 186 A.3d 1243 (D.C. 2018) (en banc), even if appellant was subject to deportation on other grounds at the time of trial and had no pre-existing right to remain in the U.S. 

Jury Selection

Haney v. U.S., 17-CF-420 (decided April 25, 2019) –

  • Holding 1: The defense established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), where “the prosecutor used seven out of nine (or 78%) of her peremptory challenges,” including every one of her first six challenges, to strike black jurors, who comprised 39% of the qualified venire, and “used four (or 44%) of her peremptory challenges to strike black males, who constituted only 18% of the venire,” with the result that “no black males served on the jury in a case where the defendant is a black male.” Slip Op. at 12.
  • Holding 2: The trial court’s erroneous refusal to proceed to step three of the Batson inquiry (based on its erroneous determination that the defense had not made a prima facie showing), required reversal, as opposed to remand, because the prosecutor proffered demeanor-based reasons for her strikes, the trial court made no contemporaneous findings regarding those reasons, the record provided no basis to test their accuracy, and, after more than two years, a remand hearing could not be expected to “replicate the probing inquiry to which appellant was entitled.” Id. at 15-19.

Blades v. U.S., 15-CF-663 (decided January 23, 2019) –

  • Holding: “[U]se of [a noise-cancelling] husher during individual-juror voir dire d[oes] not constitute closure or partial closure of the courtroom," burdening the right to a public trial, "but instead was a reasonable alternative [] to closing the proceeding, that protected appellant’s public-trial right.” Slip Op. at 19-20 (internal quotation marks and citation omitted).

Jury Deliberations 

Roberts v. U.S., 15-CF-307 (decided August 8, 2019) –

  • Holding 1: Where a juror’s note indicated a possible deadlock and a numerical split in the jury’s voting, the trial court erred and violated appellant’s constitutional right to be present and represented by counsel at trial when, in an effort to prevent itself from learning the numerical split, the court refused to allow defense counsel to read the note. Slip Op. at 8-11.
  • Holding 2: The trial court’s error was not harmless beyond a reasonable doubt because, had defense counsel been able to read the note, he could have relayed its contents (minus the numerical split) and argued—“with authority” and a “reasonable possibility” of success—for a mistrial or an instruction that no juror should “surrender [her] honest conviction as to the weight or effect of evidence solely because of the opinion of [her] fellow jurors, or only for the purpose of returning a verdict.” Id. at 12-13. Although defense counsel sought these remedies unsuccessfully below, the trial court’s reason for refusing to grant them was its self-imposed ignorance regarding the note’s content. Id. at 13-14.


Expert Testimony

Williams v. U.S., 13-CF-1312 (decided June 27, 2019) (granting appellant’s petition for rehearing) –

  • Holding: After Gardner v. U.S., 140 A.3d 1172 (D.C. 2016) and Motorola, Inc. v. Murray, 147 A.3d 751 (D.C. 2016) (en banc), “it is plainly error to allow a firearms and toolmark examiner to unqualifiedly opine, based on pattern matching, that a specific bullet was fired by a specific gun.” Slip Op. at 22. 

Jackson v. U.S., 17-CF-943 (decided June 27, 2019) –

  • Holding: In an assault case, the trial court reversibly erred in admitting evidence that appellant used PCP eighteen hours before he struck his longtime roommate in the eye with a knife, where the government presented no expert testimony to enable the jury to decide whether appellant was still under the influence at the time of the attack. Absent such expert testimony, appellant’s PCP use was substantially more prejudicial than probative and was not admissible to explain why appellant would attack the complainant or to impeach appellant’s ability to perceive and recall the incident. 

Jones v. U.S., 15-CO-1104 (decided March 7, 2019) –

  • Holding: False testimony regarding microscopic hair comparison was material to the outcome of appellant’s armed robbery trial, given the high degree of certainty that the expert expressed regarding the comparison and the prosecutor’s forceful reliance on that certainty in closing. The remaining evidence, consisting of eyewitness identifications by long-time acquaintances, was not so overwhelming as to render the hair comparison immaterial. Slip Op. at 25-36. 


Holman v. D.C., 15-CT-335 (decided February 28, 2019)–

  • Holding: A police officer’s notes regarding the phone number that called complainant (in alleged violation of a civil protective order), were admissible, insofar as the officer transcribed the number from the call log on complainant’s phone, which contained machine-generated output, rather than the out-of-court statements of a human declarant. Appellant’s hearsay objection did not preserve a separate challenge to the reliability of the call log, and the trial court did not plainly err in admitting evidence of it despite reliability concerns expressed on appeal.


Blades v. U.S., 15-CF-663 (decided January 23, 2019) – 

  • Holding: Any error in admitting photo arrays that contained appellant’s mugshot was harmless beyond a reasonable doubt where, “[d]espite learning that appellant had broken the law” by possessing an unregistered gun and ammunition, the jury found him not guilty on some charges. Slip Op. at 24. 
  • Of Note: In assessing whether admission of the photo arrays was harmless, the court reasoned, contrary to the trial court below, that “the unsmiling expressions on the men’s faces do suggest that the photos may be mugshots.” Id. at 23.