Gause v. United States

6 A.3d 1247, 2010 D.C. App. LEXIS 613, 2010 WL 4340833

• Court: District of Columbia Court of Appeals
• Decided: November 4, 2010
• Docket: 06-CF-20, 06-CF-47
• Status: Published

Opinions

BLACKBURNE-RIGSBY, Associate Judge:

In this case, we convened en banc to consider whether the District of Columbia Jury System Act (“DCJSA”),¹ which includes a statutory right to inspect court records used in connection with the jury selection process, requires a predicate showing that the requested materials -will ultimately yield evidence of a “substantial failure to comply with” the DCJSA. We decline to impose a threshold showing requirement, because to do so would undermine the DCJSA’s stated purpose by creating an unnecessary hurdle for litigants seeking discovery of jury pool information in connection with a challenge to the fairness of the jury selection process. We conclude that the DCJSA neither imposes, nor requires this court to impose, such a threshold showing requirement and we therefore reverse and remand for further proceedings consistent with this opinion.

In declining to impose a threshold showing requirement, we begin our analysis by comparing the DCJSA with its predecessor, the federal Jury Selection and Service Act (“FJSSA”), 28 U.S.C. §§ 1861-1878 (1978). In Test v. United States, 420 U.S. 28, 30, 95 S.Ct. 749, 42 L.Ed.2d 786 (1975) (per curiam), the Supreme Court analyzed the FJSSA’s statutory provisions, as well as its stated purpose, and concluded that the FJSSA confers an “unqualified right” to discovery under the statute. Next, we consider differences between the FJSSA and the DCJSA; although the statutes are nearly identical in their stated purposes, they differ in their structure and organization. There is one difference in particular that we acknowledge and analyze-the absence in the DCJSA of explicit language stating that litigants may inspect jury records. But we conclude that this difference alone, without any clear legislative history or intent, is insufficient to accord less protection to District of Columbia litigants under the DCJSA than was accorded to them under the FJSSA, especially given the virtually identical purposes of both statutes. Finally, we make clear that trial judges retain important discretion over the scope and timing of discovery pursuant to the DCJSA.

1. Background and Procedural History

Following a jury trial in 2005, appellants Larry A. Gause and Karlepa Wilkey were convicted of armed robbery of a senior citizen and of several related weapons offenses. In their appeal, appellants contended that the trial judge erred by denying Gause’s pretrial request (joined by Wilkey) for discovery, pursuant to the DCJSA, relating to jury selection records. As described more fully in Gause v. United States, 959 A.2d 671, 675-76 (D.C.2008) (Gause I), appellants’ motion, which included substantial, albeit preliminary, expert analysis, alleged that the Superior Court system for selecting juries “produces jury venires that do not reflect a fair cross-section of the community and systematically excludes African Americans.”² The trial judge denied Gause’s motion (the “Jury Motion”), including Gause’s request for discovery,³ based upon his finding that Gause had failed to establish a prima facie case that the Superior Court’s system for the selection of jurors violates the Fifth and Sixth Amendments to the United States Constitution and the DCJSA.

A division of this court reversed the trial court, with one judge dissenting. See Gause I, supra, 959 A.2d at 688. Rejecting the “prima facie case” standard imposed by the trial court, the Gause I majority instead fashioned a “reasonable belief’ standard whereby a litigant’s access to nonpublic jury information would be conditioned upon making “a particularized showing supporting a reasonable belief that underrepresentation in the jury pool or the venire exists as the result of practices of systematic exclusion.” Id. at 684-85, 687 (adopting standard of People v. Jackson, 13 Cal.4th 1164, 56 Cal.Rptr.2d 49, 920 P.2d 1254, 1268 (1996)). Appellants thereafter filed a petition for rehearing en banc. We granted the petition and vacated the prior decision of the court. See 968 A.2d at 1032.

II. Analysis

A.

Whether the DCJSA imposes a threshold showing requirement presents a matter of statutory construction, which involves a “clear question of law” that we review de novo. District of Columbia v. Morrissey, 668 A.2d 792, 796 (D.C.1995).

From 1968 until 1986, the jury selection system in the District of Columbia was governed by the FJSSA. Then, in 1986, Congress enacted the DCJSA “to provide for the establishment of an independent jury system for the District of Columbia Superior Court....” S.Rep. No. 99-473, at 1 (1986). While there are some obvious differences in the statutes, there are also some key similarities. In drafting the DCJSA, for example, Congress adopted the FJSSA’s “Declaration of policy” nearly verbatim, including the specific guarantee that “all litigants entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section” of the community. Compare 28 U.S.C. § 1861 with D.C.Code § 11-1901. Additionally, many provisions in the DCJSA closely follow corresponding provisions in the FJSSA. Both statutes, for example, mandate a jury selection process that is free from unlawful discrimination. In a section entitled “Discrimination prohibited,” the FJSSA states that “[n]o citizen shall be excluded from service as a grand or petit juror ... on account of race, color, religion, sex, national origin, or economic status.” 28 U.S.C. § 1862 (1980). The DCJSA has a similar section entitled “Prohibition of discrimination,” which provides that “[a] citizen of the District of Columbia may not be excluded or disqualified from jury service as a grand or petit juror in the District of Columbia on account of race, color, religion, sex, national origin, ancestry, economic status, marital status, age, or (except as provided in this chapter) physical handicap.” D.C.Code § 11-1903. Both statutes also require the adoption and implementation of a jury system plan for the random selection of jurors.⁴ Compare 28 U.S.C. § 1863(a) (1992) with D.C.Code § ll-1904(a).⁵ And, as will be apparent, both statutes include provisions for litigants who wish to challenge the composition of juries and jury venires for violation of the statute’s fair cross section requirement.⁶

Importantly, and of particular relevance here, both the FJSSA and the DCJSA expressly contemplate that litigants who wish to challenge the jury selection process will have access to nonpublic records even before any written motion is filed. The FJSSA, under the heading of “Challenging compliance with selection procedures,” states that in criminal cases, within specified time limits, “the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.” 28 U.S.C. § 1867(a). It further provides that upon the filing of such a motion:

the moving party shall be entitled to present in support of such motion the testimony of the jury commission[er] or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence.

28 U.S.C. § 1867(d). The corresponding provision in the DCJSA, under the same heading of “Challenging compliance with selection procedures,” provides:

A party may challenge the composition of a jury by a motion for appropriate relief. A challenge shall be brought and decided before any individual juror is examined, unless the Court orders otherwise. The motion shall be in writing, supported by affidavit, and shall specify the facts constituting the grounds for the challenge. If the Court so determines, the motion may be decided on the basis of the affidavits filed with the challenge. If the Court orders trial of the challenge, witnesses may be examined on oath by the Court and may be so examined by either party.

D.C.Code § ll-1910(a).

The FJSSA also includes a provision— still under the same heading, “Challenging compliance with selection procedures”— that relates to a litigant’s ability to seek discovery: “The parties in a case shall be allowed to inspect, reproduce, and copy such records or papers at all reasonable times during the preparation and pen-dency of such a motion.” 28 U.S.C. § 1867(f). There is no identical sentence in the DCJSA,⁷ but the DCJSA does provide, in D.C.Code § ll-1914(b), that “[t]he contents of any records or lists used in connection with the selection process shall not be disclosed, except in connection with the preparation or presentation of a motion under § 11-1910, or until all individuals selected to serve as grand or petit jurors from such lists have been discharged.” (emphasis added).

As noted above, the Supreme Court has had occasion to interpret the FJSSA, and the Court concluded that the DCJSA’s federal predecessor confers “essentially an unqualified right to inspect jury lists.” Test, supra, 420 U.S. at 30, 95 S.Ct. 749. The Court reasoned that the “unqualified right to inspection is required not only by the plain text of the statute, but also by the statute’s overall purpose of insuring ‘grand and petit juries selected at random from a fair cross section of the community.’ ” Id. (quoting 28 U.S.C. § 1861).⁸ The Court explained that the FJSSA’s statutory provisions guarantee “access in order to aid parties in the ‘preparation’ of motions challenging jury-selection procedures” because “without inspection, a party almost invariably would be unable to determine whether he has a potentially meritorious jury challenge.” Id. at 30, 95 S.Ct. 749. Indeed, the Court was careful to further note that litigants’ “unqualified right to inspection” was critical to effectuating the purpose of the FJSSA. Id.

Like its federal predecessor, the DCJSA contemplates that litigants who wish to challenge the jury selection process will have access to nonpublic information for the “preparation and presentation” of such challenges. Specifically, while D.C.Code § 11 — 1914(b) announces a general rule of non-disclosure of records related to the jury selection process, it also contains a key exception to permit disclosure “in connection with the preparation or presentation of a motion under § 11-1910.” Importantly, this exception is unqualified, save for the relevance requirement implicit in the words “in connection with.” On its face, therefore, the DCJSA reveals no intent to further condition the right of inspection upon a litigant’s possession and proffer of facts independently tending to show improper jury selection — facts that “almost invariably” would be unavailable to one considering a “potentially meritorious jury challenge.” Test, supra, 420 U.S. at 30, 95 S.Ct. 749 (emphasis added). Given the unqualified right to inspect afforded by the DCJSA’s federal predecessor, the equally unqualified exception declared by D.C.Code § 11 — 1914(b) bespeaks an intent of Congress to exclude any other predicate showing of relevance or justification for the inspection that the statute clearly contemplates. Indeed, there is no plain reading of the statute to support the threshold showing requirement that our dissenting colleagues would require, particularly where, as in this case, no legislative history has been cited to us suggesting that Congress meant to narrow in any way the inspection right that formerly existed in the District under the FJSSA.

B.

Based upon our analysis of the language of the DCJSA — and, to some degree, the corresponding federal statute as construed by the Supreme Court — we concluded in Section II.A. that nothing in the language of the DCJSA requires litigants to demonstrate a threshold showing of need or justification before they may inspect certain nonpublic records that are relevant for the “preparation or presentation of a motion” alleging “substantial failure to comply with” the DCJSA. But we must also consider a circumstance that loomed significant for the division majority and our dissenting colleagues, which is the absence in the DCJSA of a particular sentence in the federal statute affirmatively stating that parties in a case “shall be allowed to inspect, reproduce, and copy such records or papers [relevant to a motion] at all reasonable times during the preparation and pendency of such a motion.” 28 U.S.C. § 1867(f).

Neither party, nor our own research, has unearthed any legislative history explaining this omission from the local statute. Nevertheless, it has been argued that Congress’ omission of this language from the DCJSA supports an inference that it intended judges to condition the right to discovery under the DCJSA upon a threshold showing of probativeness of a particular kind — i.e., that the movant has objective grounds from other sources to believe, or at least suspect, that the court-records will yield affirmative evidence of a statutory or constitutional violation relevant to jury selection in the case at bar. In other words, it is argued that we should import into the DCJSA by inference such a threshold showing requirement to effectuate the “meaning” that, under certain canons of statutory construction, might be drawn from a legislature’s omission of substantive language in a subsequent enactment of a statute. See, e.g., United States v. Wilson, 290 F.3d 347, 360 (D.C.Cir.2002). But we are unpersuaded by our dissenting colleagues’ reasoning, and their reliance on Wilson in particular. Importantly, while the Wilson court observed generally that “[wjhere the words of a later statute differ from those of a previous one on the same or related subject, the Congress must have intended them to have a different meaning,” 290 F.3d at 360, it ultimately found that this canon did not apply in that case, in part because “Congress is unlikely to intend any radical departures from past practice without making a point of saying so.” Id. (quoting Jones v. United States, 526 U.S. 227, 234, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)). In this case, we decline to apply this general canon (just as the Wilson court did) because we cannot presume here that Congress intended to strip District residents of certain rights without at least “making a point of saying so.” Id.; cf. Owens v. District of Columbia, 993 A.2d 1085, 1088-89 (D.C.2010) (“We have previously refused to assume, in the absence of specific textual support,” that a statute “inten[dedj to cut back on [a] previously-existing ... statutory right”) (internal quotation marks and citation omitted).

In our view, it is too great a leap to infer from the omission of this one sentence in D.C.Code § 11-1914 (corresponding to 28 U.S.C. § 1867(f)) that Congress meant by its silence to import into the DCJSA an otherwise unexplained qualification of the discovery right — a qualification or restriction on the discovery right that did not exist in the earlier statute on the same subject. Our dissenting colleagues conclude that such a leap is “the most reasonable inference” from the absence of this sentence, but their analysis glosses over or ignores several important points. First, our dissenting colleagues offer no rationale for why Congress would reuse the FJSSA’s “Declaration of policy” nearly verbatim in the DCJSA — especially after the Supreme Court interpreted such language to call for an unqualified right to inspection — if Congress truly intended this court to fashion a new threshold showing requirement based upon the “presumptively purposeful omission” of one particular sentence in 28 U.S.C. § 1867(f).⁹

Second, contrary to the dissent’s assertion that “no provision comparable ... to [28 U.S.C.] § 1867 ... was included in the DCJSA,” the language in D.C.Code § 11-1914(b) is, in fact, almost identical to the first sentence in 28 U.S.C. § 1867(f).¹⁰ While the dissent concedes that “headings are not conclusive,” it provides no reason for dismissing the obvious parallels between 28 U.S.C. § 1867(f) and D.C.Code § ll-1914(b). Moreover, by conceding that the latter “authorizes disclosure of otherwise non-public records,” the dissent undermines its own reasoning that nothing in a section entitled “Preservation of records” might be relevant in determining whether Congress intended to strip District residents of rights that they enjoyed from 1968 until 1986.

Third, we cannot overlook, as the dissent does, the manner in which the FJSSA has worked in practice. Indeed, the dissent does not adequately explain why a federal statute and its District of Columbia successor statute — with virtually identical stated purposes — should not be interpreted consistently. This is particularly so given that this court has previously articulated that “[t]he government cannot rely on courts to rewrite imprecise enactments, and this is especially true where, as here, the [government] is asking us to accord a narrow and grudging construction to remedial legislation.” District of Columbia v. Tarlosky, 675 A.2d 77, 80-81 (D.C.1996) (internal quotation marks omitted) (citing Lanier v. District of Columbia, 871 F.Supp. 20, 24 (D.D.C.1994)).

Furthermore, if the omission of this one sentence is thought to be so telling, so too must be the legislature’s failure to include anything in the DCJSA defining (or even mentioning) this new threshold showing requirement that our dissenting colleagues would impose solely by implication. That point seems to us all the more persuasive considering the array of formulations that have been employed in reading such a qualification into the right to inspect juror records. The trial court in this case, for example, thought that a prima facie showing of a violation ought to be made before discovery would be available. And while the division majority thought this standard was too demanding, it settled upon a showing of “reasonable belief’ analogous to that required in criminal law contexts, citing authorities that require (in yet another variation) a “particularized showing” of “a reasonable belief’ that systematic exclusion resulted in underrepresentation in the jury pool. But the problem with any of these formulations is that D.C.Code § 11 — 1914(b) furnishes no basis for preferring one over the other. Indeed, the statute contains no other threshold standard of relevance or justification for the discovery of records than its terms establish: the disclosure sought must be “in connection with the preparation ... of a motion under § 11-1910.” D.C.Code § 11-1914(b). Thus, like the Supreme Court in Test, we are unwilling to import into the statute a threshold showing requirement that movants would have to satisfy before obtaining access to materials “in connection with the preparation or presentation of a motion” challenging the jury selection process.¹¹ In our view, to impose a threshold requirement would undermine the recognized purpose of the DCJSA of ensuring that litigants have access to discovery for purposes of preparing a motion challenging the jury selection process, which thereby ensures that “grand and petit juries [are] selected at random from a fair cross section of the community.” Test, supra, 420 U.S. at 30, 95 S.Ct. 749.

The imposition of a threshold requirement — even one that our dissenting colleagues describe as “very modest” — contravenes the very purpose of the DCJSA by forcing a litigant to put the proverbial cart before the horse. In other words, a threshold requirement places the burden on the litigant to prove — or prove to a lesser degree — the merits of his or her constitutional claims in order to garner access to the nonpublic and confidential information necessary to prove the merits of his or her claim. See Gause I, supra, 959 A.2d at 691 (Blackburne-Rigsby, J., dissenting). In light of how important statistics are in proving discrimination claims under the Fifth and Sixth Amendments, the practical implication of even the “very modest” threshold showing requirement that our dissenting colleagues would impose is inconsistent with the reality that “without inspection, a party almost invariably would be unable to determine whether he has a potentially meritorious jury challenge.” Test, supra, 420 U.S. at 30, 95 S.Ct. 749.

C.

At the same time, nothing we have said so far implies that the trial court is without discretion — indeed, important discretion — in entertaining a motion for discovery under D.C.Code § 11 — 1914(b). It scarcely needs saying that the judge is not obliged to grant a motion that on its face, or as signaled clearly by the circumstances, is made solely to delay the trial. The DCJSA certainly does not authorize litigants to file motions in bad faith; indeed, movants should always remember that the Superior Court has the inherent authority to punish those who intentionally abuse the litigation process. See, e.g., In re Jumper, 909 A.2d 173, 176 (D.C.2006). On the other hand, because the DCJSA imposes no threshold showing requirement, it is important to emphasize that the movant need not articulate a specific theory at the outset about how the requested materials might ultimately demonstrate a “substantial failure to comply with [the DCJSA].” D.C.Code § ll-1910(b).¹²

Significantly, courts construing the equivalent federal provision have consistently held that trial judges retain important discretion to. limit the breadth of disclosure and pace the timing of disclosure of juror-related records.¹³ And that is as it should be. The statute requires disclosure of only those records that are relevant for “the preparation or presentation of a motion” alleging a “substantial failure to comply with [the DCJSA].” D.C.Code §§ ll-1910(b), -1914(b). Obviously, not all juror-related records in the court’s possession will bear on that issue. To the extent that the non-relevant information cannot reasonably be segregated from the data to which litigants are entitled under the DCJSA, the trial court will have to exercise its discretion in deciding how best to protect it (e.g., protective order, attorneys’ eyes-only restrictions, etc.).

In this case, for example, even before appellants inspected any nonpublic records, their Jury Motion set forth their preliminary theory about how the requested materials would ultimately support a “substantial failure to comply with” the DCJSA. However, as noted above, mov-ants need not articulate such a theory as a prerequisite before exercising their inspection rights under the DCJSA. But should the movant elect to make such a proffer (whether before any inspection, as here, or as part of a status conference in between rounds of inspection), their submission might help the trial court make more informed decisions about what information is or is not relevant. In that regard, it is important to note that nothing in the DCJSA precludes the trial judge from ordering disclosure of records incrementally in determining what information, which is otherwise confidential, might be relevant for “the preparation or presentation of a motion” alleging a “substantial failure to comply with” the DCJSA.¹⁴ D.C.Code §§ 11 — 1910(b), -1914(b).

III. Conclusion

In sum, we conclude that under the DCJSA, a litigant preparing a possible motion challenging the jury selection process may inspect certain materials that are used “in connection with the [jury] selection process” without a threshold showing that there is reason to believe such discovery will ultimately substantiate a statutory or constitutional violation. The only qualification is that the litigant’s request must be “in connection with the preparation or presentation” of such a motion. D.C.Code § ll-1914(b). At the same time, the trial court retains important discretion to manage DCJSA discovery in a reasonable manner. Specifically, Superior Court judges have considerable flexibility to determine the scope and timing of the disclosure in each particular case, and what safeguards, if any, may accompany it. And while some cases may require more circumspection than others, the trial court must always be careful that it is not undermining the purpose of the statute by requiring proof of a “substantial failure to comply with” the DCJSA even before litigants have an opportunity to inspect the records that might ultimately support such a finding.¹⁵

We respectfully disagree with the dissent’s conclusion that this court must impose a threshold showing requirement to effectuate Congress’ intent (which, again, the dissent gleans primarily from the “presumptively purposeful omission” of a single sentence). In our view, the dissent reads too much into the absence of a few words; it would erect a new threshold showing requirement without any supportive legislative history, and in the face of the DCJSA’s and FJSSA’s nearly identical stated purposes. We, on the other hand, like the Supreme Court in Test, are unwilling to import into the statute a threshold showing requirement, which in our view would serve only to impose an unnecessary hurdle for litigants in contravention of the stated purpose of the DCJSA.

Here, we must remand for further proceedings because the trial court erred in requiring appellants to present a prima facie showing before they could inspect any relevant records. We leave it to the trial court to exercise its discretion to consider and decide, based on the reasoning outlined above, the proper scope of discovery and what limitations, if any, are appropriate for the particular circumstances of this case. If either appellant thereafter files a motion pursuant to D.C.Code § 11-1910 challenging the jury selection procedures (those that were in effect at the time of their trial), the court shall hear and decide the matter.¹⁶ If the court determines that “there has been a substantial failure to comply” with the DCJSA, D.C.Code § ll-1910(b), it shall grant a motion for a new trial. In other words, while appellants have a statutory right to certain discovery under the DCJSA, unless and until a violation is found by the trial court, we see no need to disturb their convictions.¹⁷ Cf. United States v. Beaty, 465 F.2d 1376, 1382 (9th Cir.1972).

So ordered. 18

1 . See D.C.Code § 11-1901 to 1918 (2001).

2 . In a footnote, our dissenting colleagues mention the racial composition of appellants’ petit jury. As explained more fully in the dissenting opinion to Gause I, supra, 959 A.2d at 691-93 (Blackburne-Rigsby, J., dissenting), the panel majority wrongly conflated the Black and Latino jurors on Gause’s panel as "Black jurors” in determining that Gause’s jury was majority Black and that Black representation on the jury was slightly greater than the percentage of the District of Columbia's population. However, the 2000 Census differentiated between those identifying as "Black alone” and those identifying as "Latino of any race.” Id. at 692. Therefore, using the Census’ metrics, Gause's jury was actually only 50% Black and thus underrepresented the District of Columbia’s Black population. Id. at 691-92. We therefore question whether the percentage figures presented by the panel majority were accurate; and even if they were, this apparent post-hoc rationalization is not relevant to the legal issue presented here — whether the DCJSA imposes a threshold showing requirement.

3 . Specifically, Gause asked the trial judge to order the Clerk of the Superior Court to provide to his counsel, for the preceding five years, or for whatever shorter period as to which the requested materials were available, (a) "all documents and computer tapes” relating to the master jury wheel, (b) "all documents and computer tapes” containing personal information about all persons summoned for jury service, and (c) "all documents relating to the development of the current jury system and plan.” Gause also requested the court to order the Clerk to make available for interview by his counsel "all jury office officials and staff and the staff of any agency designated by the Jury Plan to provide names to the juiy office for inclusion in the master jury wheel.”

4 .The District of Columbia’s Jury System Plan provides for the random selection and service of grand and petit jurors in the Superior Court. D.C.Code § 11-1904. The Plan provides that a master juror list is to be compiled from lists of District of Columbia voters, and names from other appropriate sources identified in the Plan. D.C.Code § 11-1905. The Plan also provides procedures for the random selection and qualification of grand and petit jurors from the master juror list, which contains, inter alia, name, age, and occupation information. D.C.Code § 11-1906. See, e.g., Maxwell v. United States, 297 A.2d 771, 774 (D.C.1972) (noting that master jury list contained, inter alia, names, ages, and occupations). A qualification form is mailed to these prospective jurors who must meet certain criteria in order to be qualified to serve. D.C.Code § 11-1906. This form also contains information on a prospective juror’s race. Qualified jurors are then entered into a master jury wheel, which forms the basis for the random selection of venires for grand and petit juries. D.C.Code § 11-1904.

5 . The FJSSA mandates that ”[e]ach United States district court shall devise and place into operation a written plan for random selection of grand and petit jurors that shall be designed to achieve the objectives of sections 1861 [“Declaration of policy”] and 1862 [“Discrimination prohibited”] of this title.” 28 U.S.C. § 1863(a). The DCJSA similarly requires that the “Board of Judges shall adopt, implement, and as necessary modify, a written jury system plan for the random selection and service of grand and petit jurors in the Superior Court consistent with the provisions of this chapter.” D.C.Code § 11-1904(a).

6 . Jury challenges may also be brought pursuant to the Sixth Amendment and/or the Fifth Amendment. And several state legislatures have enacted statutes similar to the DCJSA as well. See, e.g., Lewis v. State, 332 Md. 639, 632 A.2d 1175, 1176-77 (1993); Forum Commc’ns Co. v. Paulson, 752 N.W.2d 177, 183 (N.D.2008); Gannett Co. v. State, 571 A.2d 735, 746-47 (Del.1990).

7 . Our dissenting colleagues' characterization of this "presumptively purposeful omission” might lead one to assume that the FJSSA and the DCJSA are mirror images of each other but for the "shall be allowed to inspect” sentence in 28 U.S.C. § 1867(f) and the "shall be entitled to present” language in 28 U.S.C. § 1867(d). However, the DCJSA was drafted almost twenty years after the FJSSA and there are significant differences in both the language and organization of the two statutes. Compare, e.g., 28 U.S.C. § 1867(a)-(c) (outlining, in three separate subsections, time limits for bringing a challenge, depending upon whether the case is criminal or civil) with D.C.Code 11 — 1910(a) (establishing, in one subsection, time limits for bringing a challenge in any type of case).

8 . When drafting the DCJSA, Congress adopted (nearly verbatim) the FJSSA’s "Declaration of policy,” which, as the Supreme Court reasoned in Test, confers an independent basis for the "unqualified right to inspection” in the FJSSA. Test, supra, 420 U.S. at 30, 95 S.Ct. 749.

9 . See Test, supra, 420 U.S. at 30, 95 S.Ct. 749. Without explanation, the dissent completely ignores that 28 U.S.C. § 1861 and D.C.Code § 11-1901 are almost identical.

10 . Compare D.C.Code § ll-1914(b) ("The contents of any records or lists used in connection with the selection process shall not be disclosed, except in connection with the preparation or presentation of a motion under § 11-1910, or until all individuals selected to serve as grand or petit jurors from such lists have been discharged.”) with 28 U.S.C. § 1867(f) ("The contents of records or papers used ... in connection with the jury selection process shall not be disclosed, except pursuant to the district court plan or as may be necessary in the preparation or presentation of a motion under [this section], until ... all persons selected to serve as jurors ... have completed such service.”).

11 . We also note that Superior Court judges may have had considerable difficulty applying the "reasonable belief” standard adopted by the division majority. The full passage from the California case upon which the division majority relied in fashioning the "reasonable belief” standard provides:

Rather, upon a particularized showing supporting a reasonable belief that underrepre-sentation in the jury pool or the venire exists as the result of practices of systematic exclusion, the court must make a reasonable effort to accommodate the defendant’s relevant requests for information designed to verify the existence of such underrepre-sentation and document its nature and extent.

Gause I, supra, 959 A.2d at 685 (quoting People v. Jackson, 13 Cal.4th 1164, 56 Cal.Rptr.2d 49, 920 P.2d 1254, 1268 (1996)). In our view, this "reasonable belief” standard raises a whole host of questions but supplies very few answers. And, to add yet another layer of complexity, the division majority appeared to somehow qualify its endorsement of California’s already confusingly vague standard. See, e.g., id. (describing the "reasonable belief” standard as one that "appears to be roughly comparable to the reasonable ‘ar-ticulable suspicion’ standard applied by the Supreme Court” in “stop and frisk” cases, and directing that "doubtful cases [should] be resolved in the defendant’s favor_”) (emphasis added).

12 . See, e.g., Test, supra, 420 U.S. at 30, 95 S.Ct. 749 (recognizing that without discovery, "a party almost invariably would be unable to determine whether he has a potentially meritorious jury challenge."); United States v. Royal, 100 F.3d 1019, 1025 (1st Cir.1996) (‘‘[A] litigant need only allege that he is preparing a motion to challenge the jury selection process.”).

13 . See, e.g., United States v. Davenport, 824 F.2d 1511, 1514-15 (7th Cir.1987) (holding that defendant had "unqualified right” to the jury list, but not the jury qualification questionnaires without some demonstration of necessity); United States v. McLernon, 746 F.2d 1098, 1122-23 (6th Cir.1984) (holding that defendants' right to discovery was satisfied by inspection of master lists and the relevant demographic data about the general pool from which the grand jurors were selected, and thus defendants were not entitled to the names, addresses, and demographics of the individual grand jurors who returned indictments against them); United States v. Shapiro, 994 F.Supp. 146, 148 (E.D.N.Y.1998) (finding that transmission of juror information to defendant's attorney, and not defendant himself, satisfied defendant’s unqualified right to inspect jury lists).

14 . In fact, several federal courts dealing with analogous requests under the FJSSA have used such an approach. See, e.g., United States v. Diaz, 236 F.R.D. 470, 483-84 (N.D.Cal.2006) (allowing access to information explaining how computerized jury selection program functions, but denying access to original source list of juror information); United States v. Carlock, 606 F.Supp. 491, 493-94 (W.D.La.1985) (allowing access to "the records and materials used in selection of the master jury wheel and qualified jury wheel,” including the completed juror qualification forms, but deferring movant’s request for information regarding the potential jurors for his case until after the jury was empaneled).

15 . Cf. Test, supra, 420 U.S. at 30, 95 S.Ct. 749 (noting that without discovery, "a party almost invariably would be unable to determine whether he has a potentially meritorious jury challenge.”).

16 . The DCJSA specifies that motions challenging the jury-selection process "shall be brought and decided before any individual juror is examined, unless the Court orders otherwise." D.C.Code § ll-1910(a) (emphasis added).

17 . For the reasons stated in Gause I, supra— which we subsequently vacated in toto, see 968 A.2d 1032 — we hereby reaffirm and adopt the panel’s conclusions about Wilkey's other contentions. 959 A.2d at 688 n. 17.

18 . We note that our colleagues in the minority have prepared a strongly-worded dissent. From our perspective, our contrasting positions in this case derive from one critical difference in opinion. We determine that depriving District of Columbia litigants of an "unqualified right” that they have enjoyed for over forty years, without specific congressional direction to that effect, constitutes a "radical departure from past practice” that, pursuant to Jones, 526 U.S. at 234, 119 S.Ct. 1215, and Wilson, 290 F.3d at 360, precludes this court from following the canon of statutory interpretation that our dissenting colleagues would have us follow. Our colleagues in the minority disagree.