U.S. v. Vann Part I: Batson and Faretta

The Tenth Circuit published United States v. Vann the other week. The opinion is 34 pages long and addresses four issues (the defendant lost all of them). We'll deal with two of the issues today.

1. Batson Challenge

The government used a preemptory strike on the lone African-American on the venire. So the defendant raised a Batson challenge (this is the Supreme Court decision that holds that prospective jurors may not be stricken based solely on their race). The government denied that it struck the person based on race. Instead, the prospective juror did not fill out the jury questionnaire ("there's no indication that he has any type of family or any type of job"). The government took this to mean that the prospective juror was uneducated. Oh, and the government also thought that the person appeared "dazed and disengaged" during voir dire. Finding these reasons sufficient, the district court immediately denied the defendant's challenge. Defense counsel wanted to respond, however, so the court allowed a response, then denied the challenge. After trial, in a motion for new trial, the defendant addressed the Batson issue anew, noting that the prospective juror actually had some college education, whereas one of the actual jurors was uneducated. In response, the district court gave a more detailed reason for denying the challenge (but not much more).  
On appeal, the defendant focused his complaint on the brevity of the district court's denial, rather than the appropriateness of it. In other words, the defendant thought the district court should have said more when it denied the challenge. The Tenth Circuit was unimpressed, essentially holding that a district court need not say much of anything when denying a Batson challenge. In a footnote, the Court acknowledged a likely split in the Circuits on this issue, as other courts of appeals require explicit factual findings when ruling on a Batson challenge. Perhaps the Supreme Court will take this case to resolve the conflict in the Circuits.
The Court criticized defense counsel on a number of points, including its failure to make all of its arguments concomitant with the challenge and its failure to respond directly to all of the government's "race-neutral" reasons at the time those reasons were offered. The Court was particularly unimpressed with counsel's motion for new trial, where "with the benefit of hindsight" counsel  "constructed a rebuttal" of the government's reasons. The Court suggested that the challenge should have been "renewed" once the jury was comprised. This is tough criticism considering the practical realities of picking a jury in federal court. But it suffices to say that Batson arguments in motions for new trials might not be a particularly good idea moving forward.

2. Self-Representation at Sentencing

We'll skip to the last issue because this is getting long. That issue is somewhat straightforward. The defendant elected to represent himself at sentencing, which is his constitutional right to do so. Yet, on appeal, he asserted that the district court failed to advise him properly on the risks of self-representation. The government actually conceded the point, but asserted that a Faretta inquiry prior to trial sufficed to put the defendant on notice of the risks associated with self-representation. This seems like a stretch to us. That inquiry took place three months prior, and it involved trial, not sentencing. We are fairly certain the two are different. Yet, the Court actually bought this argument. It noted that the defendant pointed "to no case holding that an earlier, in-depth Faretta hearing cannot satisfy" a waiver of counsel. But we wonder if the government pointed to the opposite case. If it did, the Court failed to cite it. We think the dearth of case law favors the defendant, as it suggests that this type of error is simply not committed by district courts. We understand the frustration with a defendant's inconsistent arguments (I don't want an attorney, wait, I should have had an attorney), but a Faretta inquiry is a fairly simple thing. It would have been nice had the Court noticed the district court's error, vacated the sentence to correct it, and remanded for resentencing, instead of trying to justify the error on an analysis of how many cases the defendant cited (or did not cite). This sounds like another cert. worthy issue to us.