Appendix — Castille v. Harrison

Supreme Court brief1990

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90-6 21 FILED

isa if COT 35 09

JOSEPH F. SPARC. ;

- NO 5 ies

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1990

RONALD D. CASTILLE, District Attorney

of Philadelphia County;

JOSEPH M. RYAN, Superintendent,

State Correctional Institute at Dailas;

and ERNEST D. PREATE, Jr.,

Attorney General of Pennsylvania,

Petitioners

Vv.

WILLIAM HOWARD HARRISON,

Respondent

APPENDICES TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

——

GAELE MCLAUGHLIN BARTHOLD

Deputy District Attorney

(Counsel of Record)

ELIZABETH J. CHAMBERS

Chief, Federal Litigation

KATHY L. ECHTERNACH

Assistant District Attorney

WILLIAM G. CHADWICK, Jr.

First Assistant District Attorney

RONALD D. CASTILLE

District Attorney

Philadelphia County

1421 Arch Street

Philadelphia, PA 19102

(215) 686-5700

TABLE OF CONTENTS

PAGE

Appendix A:

Order and Opinion of the

United States Court of

Appeals for the Third

Circuit A-1l - A-18

Appendix B:

Memorandum Order of the

United States District

Court for the Eastern

District of Pennsylvania B-1 - B-5

Appendix C:

Report and Recommendation

of the Chief United States

Magistrate for the Eastern

District of Pennsylvania C-1 - C-69

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APPENDIX "A"

apsnaneg Ste oi th

FILED: JULY 25, 1990

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 90-1175 and 90-1220

HARRISON, WILLIAM HOWARD

vs.

RYAN, JOSEPH M., SUPT., S.C.I.

DALLAS, PA. AND

THE ATTORNEY GENERAL OF THE STATE

OF PENNSYLVANIA

Joseph M. Ryan, The Attorney General

of the State of Pennsylvania and

Ronald D. Castille,

Appellants in No. 90-1175

HARRISON, WILLIAM HOWARD

Appellant in No. 90-1220

vs.

RYAN, JOSEPH M., SUPT., S.C.I.

DALLAS, PA. AND

THE ATTORNEY GENERAL OF THE STATE

OF PENNSYLVANIA

Appeal from the United States

District Court for the ,

Eastern District of Pennsylvania

(D.C. Civil No. 87-07439)

Argued

June 27, 1990

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Before: SLOVITER and

MANSMANN, Circuit Judges,

and THOMPSON, District Judge.*

(Filed July 25, 1990)

Michael J. Kelly, Esquire (ARGUED)

Assistant Defender

Defender Association -of Philadelphia

Federal Court Division

Suite 500S - Cast Iron Building

718 Arch Street

Philadelphia, PA 19106

Attorney for Appellee/Cross-Appellant

Kathy L. Echternach (ARGUED)

Assistant District Attorney

Elizabeth J. Chambers

Chief, Federal Litigation

Gaele McLaughlin Barthold

Deputy District Attorney

William G. Chadwick, Jr.

First Assistant District Attorney

Ronald D. Castille

District Attorney

1421 Arch Street

Philadelphia, PA 19102

Attorney for Appellant

* Honorable Anne E. Thompson of the

United States District Court for the

District of New Jersey, sitting by

designation.

i nd

i le

OPINION OF THE COURT

MANSMANN, Circuit Judge.

| In this appeal from the grant of

a writ of habeas corpus, the Commonwealth

of Pennsylvania contends that the peti-

tioner, William Howard Harrison, is not

entitled to habeas relief under Batson v.

Kentucky, 476 U.S. 79 (1986), which

prohibits the prosecution's use of peremp-

tory challenges to exclude individuals

from serving as jurors on the basis of

race. Because Harrison's appeal from the

judgment of sentence was on direct review

in the state court system at the time of

the Batson decision, and because the

prosecution was unable to articulate a

racially neutral reason for its peremptory

challenge of a black jury venireperson, we

will affirm the decision of the district

court. Harrison's cross-appeal is mooted

A-3

by our decision in his favor in the

government's appeal.+

In September, 1982, the peti-

tioner, William Howard Harrison, was tried

and convicted of robbery and conspiracy.

During the jury selection process, the

prosecutor used six wt his eight perempto-

ry challenges to dismiss jury

venirepersons from the jury panel. All

six were black; Harrison is black.

Harrison's trial counsel timely objected

: luarrison alleged in his cross-appeal

that the magistrate's determination that

the prosecutor had not discriminated by

using his peremptory challenges against

two other veniremen was clearly erroneous.

In light of our holding which mandates a

new trial, we need not address this

contention. We note, however, that the

determination of whether the prosecutor's

reason was racially neutral is a factual

determination and therefore entitled to

great deference. Batson, 476 U.S. at 98,

n.21. Harrison did not offer evidence to

show that the determination as to the two

veniremen was clearly erroneous.

to the prosecutor's use of peremptory

challenges to exclude all black

venirepersons.

In April, 1986, the Supreme

Court decided Batson v. Kentucky, 476 U.S.

79 (1986), and held that the equal protec-

tion clause is violated when venirepersons

are excluded from the jury on the basis of

race. At that time, Harrison's direct

appeal from his conviction was pending

before the Pennsylvania Superior Court,

which affirmed his conviction in May of

1986. The Pennsylvania Supreme Court

denied allocatur in December, 1986.

On November 19, 1987, Harrison

filed a petition for writ of habeas

oomen. challenging his conviction and

incarceration. He alleged that the prose-

cutor had impermissibly used race as a

factor, when using his peremptory chal-

lenges, in order to exclude Blacks from

the jury. The United States Magistrate

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held a hearing in October of 1988, to

determine whether the prosecutor could

provide clear, specific and racially

neutral explanations for his peremptory

challenges. The magistrate issued a

Report and Recommendation concluding that

the prosecutor was able to articulate

racially neutral explanations for the

dismissal of five of the six

venirepersons, but was unable-to explain

the dismissal of the sixth. * Consequent-

ly, the magistrate recommended that the

certificate of probable cause be issued

and the writ granted.

-rhe magistrate did recognize that

the race-neutral reasons articulated by

the prosecutor with respect to several

black jurors were not strong: (1) Juror

Logue had a "liberal arts" education; (2)

Juror Nottingham was tentative in her

responses; and (3) Juror Toney sat next to

and was talking to Juror Edwards who had

previously been struck.

A-6

The district court eddeaes the

Report and Recommendation of the magis-

trate and granted the writ. The district

court then ordered that the Commonwealth

either retry the petitioner within 90 days

or release him. The Commonwealth appealed

from the grant of the writ.

Because Harrison's appeal from

his conviction was on direct review in the

Pennsylvania state court system at the

time of the Supreme Court's decision in

Batson, we must apply the new rule.

Griffith v. Kentucky, 479 U.S. 315 (1987)

(new rule for the conduct of criminal

prosecutions is to be applied to all

cases, state or federal, pending on direct

review or not yet final). The district

court's factual determinations, including

issues of credibility, are entitled to

great deference and are not to be over-

turned unless clearly erroneous. Batson

v. Kentucky, 476 U.S. 79 (1986). As to

A-7

matters concerning questions of law,

however, we have plenary review.

32.

In Batson v. Kentucky, 476 U.S.

79 (1986), the Supreme Court reaffirmed a

principle decided over one hundred years

earlier that “the State denies a black

defendant equal protection of the laws

when it puts him on trial before a jury

from which members of his race have been

purposefully excluded." 476 U.S. at 85,

citing Strauder v. West Virginia, 100 U.S.

303 (1880). Moreover, the Court noted,

racial discrimination in the selection of

jurors not only harms the defendant but

also harms the excluded juror and brings

into question the fairness of the judicial

system. Id. at 87.

To avoid the crippling burden of

proof which has been placed on the defen-

dant by some courts to establish the

existence of a violation of the equal

A-8

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protection clause, the Court discerned the

elements of a prima facie case from the

many cases applying Strauder. 476 U.S. at

92-94. Thus, to establish a case of

purposeful discrimination, the defendant

must show that

he is a member of a cognizable racial

group, and that the prosecutor has -

exercised peremptory challenges to

remove from the venire members of the

defendant's race. Second, the

defendant is entitled to rely on the

fact, as to which there can be no

dispute, that peremptory challenges

constitute a jury selection practice

that permits ‘those to discriminate

who are of a mind to discriminate’.

Finally, the defendant must show that

these facts and any other relevant

circumstances raise an inference that

the prosecutor used that practice to

exclude the veniremen from the petit

jury on account of their race. This

combination of factors in the

empaneling of the petit jury, as in

the selection of the venire, raises

the inference of purposeful discrimi-

naticn.

Batson, 476 U.S. at 96. Once the defen-

dant establishes the prima facie showing,

the State has the burden of articulating a

racially neutral reason for challenging

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the black venirepersons. While the

prosecutor's explanation need not rise to

the level necessary to justify a challenge

for cause, a mere affirmation of good

faith is insufficient. Id. at 97.

In the case before us, Harrison

established that he was a member of a

cognizable race, i.e., he is black, and

that the prosecutor used six of his eight

perelptecy challenges to eliminate six

black venirepersons from the jury. In

order to determine if other factcrs or

circumstances could have resulted in the

dismissal of the black venirepersons, an

evidentiary hearing was necessary.

The magistrate thus conducted a

hearing at which the prosecutor recon-

structed the jury selection through the

use of his notes. Based upon the examina-

tion of the prosecutor and the transcript

of the jury voir dire, the magistrate

concluded that of the six black jurors

| era

excluded by peremptory challenge, only one

challenge was unexplained. The prosecutor

believed it may have been due to her age

(70 at the time) but was not certain. The

transcript of the evidentiary hearing

reveals the following colloquy:

Q. Now, the notation 0O.K. would mean

what to you at this time?

A. That means she was okay. I was

going to take her as a juror, that I

was going to accept her.

Q. But you did not, obviously.

Q. And what if you can, tell us what

would be the reason that you would

strike her?

A. I don't know.

Q. You don't have a present recollec-

tion, is that correct?

A. That's right.

xz & &

A. Just looking at these notes, I

don't know. I don't have her age

down here. The fact that her son is

a retired police officer, I assume

she is an older woman. That could

have been a factor; I don't know.

Appendix at 198. Due to this lack of

certainty, the magistrate found that the

Commonwealth failed to rebut Harrison's

prima facie showing of racial discrimina-

tion as to the one juror. Indeed, the

magistrate stated:

The reason why I must reject this

explanation is not because of age but

because the prosecutor could not

recall his reason. The testimony

which I credit is summarized by his

repeated statement "I don't know."

Since this is not a satisfactory

explanation under Batson, I conclude

the evidence is not acceptable and

the Commonwealth has failed to meet

the standard.

Appendix at 263. We agree with the

magistrate, and with the district court

which approved the magistrate's Report and

Recommendation, that the prosecutor's

failure to recall his reason for using a

peremptory challenge to strike the juror

was insufficient to satisfy the Batson

requirement that the "prosecutor ... must

articulate a neutral explanation related

to the particular case to be tried." 476

A-12

- —

U.S. at 98. It is certainly not suprising

that the prosecutor could not recall his

reason given the length of time which

passed between jury selection and the

Batson hearing. Indeed, the difficulty of

the prosecution to recall reasons for

peremptory challenges was the reason the

Supreme Court decided not to apply Batson

to cases on collateral review. See Allen

v. Hardy, 478 U.S. 255 (1986). Certain

other factors, however, most notably the

interests of justice, require retroactive

application of Batson for cases on direct

review even where a long period of time

occurs in the state court appellate

process. This is especially true here

where defense counsel timely objected to

the use of peremptory challenges, the

number of peremptory challenges exercised

against Blacks was so great, the race

neutral reasons given for striking other

black jury venirepersons were so weak, and

A-13

the prosecutor was unable to articulate a

race neutral reason for striking one of

the black venirepersons.

Having determined that the

Commonwealth has failed to meet its

burden, i.e., that the "prosecutor must

give a 'clear and reasonably specific'

explanation of his ‘legitimate reasons'

for exercising the challenges," Batson,

476 U.S. at 98, n.20, (citing Texas Dept.

of Community Affairs v. Burdine, 450 U.S.

248, 258 (1981)), we are now faced with

the question of whether the exclusion of

one black juror from the jury on the basis

of race is sufficient to require a new

trial pursuant to Batson. We hold that it

is.

The Court in Batson was neces-

Sarily concerned about the effect of

racial discrimination within the judicial

system where it "is most pernicious

because it is a ‘stimulant to that race

A-14

prejudice which is an.impediment to

securing to black citizens that equal

justice which the law aims to secure to

all others.'" 476 U.S. at 88, citing

Strauder v. West Virginia, 100 U.S. at

308. Moreover, the Court noted that

[jJust as the Equal Protection Clause

forbids the States to exclude black

persons from the venire on the

assumption that blacks as a group are

unqualified to serve as ... jurors,

so it forbids the States to strike

black veniremen on the assumption

that they will be biased.in a partic-

ular case simply because the defen-

dant is black. The core guarantee of

equal protection, ensuring citizens

that their State will not discrimi-

nate on account of race, would be

meaningless were we to approve the

exclusion of jurors on the basis of

such assumptions, which arise solely

from the jurors' race.

Batson, 476 U.S. at 97-98. While the

Court recognized the administrative

burdens the prosecution and trial courts

would face in following the Batson man-

date, the Court also recognized that "[bly

requiring trial courts to be sensitive to

the racially discriminatory use of

A-15

peremptory challenges, our decision

enforces the mandate of equal protection

and furthers the ends of justice." Id. at

99. This holds true when even one black

person is excluded for racially-motivated .

reasons.

Our holding is supported by

decisions of two of our sister courts of

appeals. In United States v. David, 803

F.2d 1567 (llth Cir. 1986), the Court of

Appeals for the Eleventh Circuit stated:

"the striking of one black juror for a

racial reason violates the Equal Protec-

tion Clause, even where other black jurors

are seated, and even when valid reasons

for the striking of some black jurors are

shown." 803 F.2d at 1571. The court

reasoned that the rationale of Batson was

premised on the notion that black

venirepersons are entitled not to be

struck for racially motivated reasons and

black defendants have the right to be

A-16

tried in a judicial system which does not

exclude on the basis of race. Id. The

Court of Appeals for the Eighth Circuit

held similarly in United States v. Battle,

836 F.2d 1084 (8th Cir. 1987).

Iii.

Since we believe that the Batson

Court placed the requirements of justice

and equal protection above the burden

placed on the Commonwealth to retry the

defendant before a jury from which no one

has been excluded for a racially motivated

reason, we conclude that the prosecution's

failure to rebut Harrison's prima facie

showing of racial discrimination as to one

juror dictates the grant of a new trial.

We recognize the burden placed on the

Commonwealth to retry Harrison after

almost nine years have passed. Neverthe-

less, the intent of the Supreme Court in

deciding Batson was to guarantee, both to

the defendant desiring a jury trial and to

! A-17

the jury venirepersons, that the jury will

be selected on a racially non-discrimina-

tory basis. Consequently, we will affirm

the order of the district court granting

the petitioner's writ of habeas corpus and

requiring the Commonwealth to either retry

the petitioner within 90 days or release

him.

A True Copy:

Teste:

Clerk of the United States Court —

of Appeals for the Third

Circuit

APPENDIX "B"

o ie

5 Mo

ates

Norece dc

UREA Eh DRT AN ooh Sale a tbat lel a TO

int aa

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM HOWARD HARRISON, :- CIVIL ACTION

Petitioner :

Vv.

JOSEPH M. RYAN, SUPT., s

$.C.d< DALLAS, PA, : NO. 87-7439

Respondent :

and

THE ATTORNEY GENERAL OF

THE STATE OF PENNSYLVANIA,

Additional Respondent

MEMORANDUM ORDER

AND NOW, TO WIT, this 26th day

of January, 1990, in consideration of the

pleadings and record herein, and after

review of the Report and Recommendation of

Tullio Gene Leomporra, Chief United States

Magistrate, and the objections filed

thereto, it is hereby ORDERED that:

1. The Report and Recommenda-

tion is approved and adopted.

2. The petitioner's Petition

for Habeas Corpus is granted.

3. The petitioner shall be

) retried within ninety (90) days from the

: date of this Order.

4. If the Commonwealth fails to

retry petitioner as ordered, petitioner

shall be released.

: Having reviewed the record

before it, the court adopts the findings

of fact as stated in the Report and

Recommendation. As explained in the

Report and Recommendation, in order for a

petitioner to successfully contest a

prosecutor's use of peremptory challenges

- as violating the Equal Protection Clause

of the Constitution, the petitioner must

establish a prima face case of purposeful

discrimination as required by the United

Pama AN See sh Wil Ba

States Supreme Court in Batson v. Ken-

tucky, 106 S.Ct. 1712, 1723 (1986). Based

WA Nac GR than ad caeninckg 0

on the evidence provided in the record,

the court is satisfied that petitioner has

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met this burden. Specifically, the

B-2

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petitioner made a showing that he is black

and that all six of the venirepersons the

prosecutor peremptorily challenged were

black. The record also indicates that the

jury consisted of eleven white persons and

one dark-skinned Indian. Having made that

showing, the burden then shifted to the

Commonwealth to come forward with a

neutral explanation for challenging black

jurors. Batson, 106 S.Ct. at 1723.

Because the court agrees with the United

States Magistrate that the Commonwealth

failed to articulate a neutral reason for

challenging one of the six jurors, the

habeas corpus petition must be granted.

Although the court adopts the

Report and Recommendation, the court has a

few remaining concerns. The court recog-

nizes the burden this ruling places on the

Commonwealth. As stated in the Respon-

dent's Objections to the Report and

Recommendation of the United States

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Magistrate, if the Commonwealth chooses to

retry the petitioner, the Commonwealth

must essentially reconstruct its case from

the beginning, including piecing together

evidence, locating witnesses, and prepar-

ing for trial. However, the disadvantage.

that may be placed on the Commonwealth

cannot be remedied by offending the sound >

constitutional principles expressed by the

United States Supreme Court in Batson v.

Kentucky.

In addition, if the Commonwealth

has a concern that the ninety (90) day

period in which it must retry petitioner

is overly burdensome, it may file a motion

with the court giving specific reasons why

this period should be extended. Should

the Commonwealth do so, the court will

give the matter due consideration and

provide relief where appropriate.

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It is so ordered.

LOUIS C. BECHTLE, J.

APPENDIX “C"

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a a i i SH Ee te a a eo ATEN

. ‘

By a. meh *

Reread 1 at alia Ay

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

_ WILLIAM HOWARD HARRISON, : CIVIL ACTION

Petitioner

vs.

_ JOSEPH M. RYAN, SUPT., :

| im DALLAS, PA, Ps NO. 87-7439

Respondent :

AND :

THE ATTORNEY GENERAL OF :

THE STATE OF PENNSYLVANIA, :

Additional Respondent :

REPORT AND RECOMMENDATION

TULLIO GENE LEOMPORRA

CHIEF UNITED STATES MAGISTRATE

PROPOSED FINDINGS OF FACT, CONCLUSIONS OF

LAW & DISCUSSION

On November 19, 1987, petition-

er, William Howard Harrison, filed a

Petition for Writ of Habeas Corpus pursu-

ant to 28 U.S.C. § 2254. This petition

asserted that during his jury trial in the

Philadelphia County Court of Common Pleas

on September 20, 1982, in which he was

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“convicted of one (1) count of robbery and

criminal conspiracy, petitioner:

1. was denied due process when

the trial court refused to allow

him to proceed as pro se counsel;

and

2. was denied equal protection and a

fair trial by the prosecutor's use

of peremptory challenges at trial.

On August 3, 1988, I recommended

that the petitioner's claim regarding

waiver of counsel be denied being without

merit. As to the petitioner's second

* contention, an evidentiary hearing was

ordered to determine whether the state

used its peremptory challenges in a

race-neutral way as defined in Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712

(1986). A more complete history of the

preliminary facts is contained in my prior

Report and Recommendation which is at-

tached to this Report and Recommendation

and which was approved by the Honorable

Louis C. Bechtle.

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The discussion which follows

? consists of my Proposed Recommended

’ Findings of Fact and Conclusions of Law.

In the trial of this matter, the

4 jury determined that on February 5, 1982,

the petitioner, William Howard Harrison,

was a conspirator with two (2) other

defendants, his brother, James Harrison

and his nephew, Donald Harrison, ina

robbery of the First Pennsylvania Bank at

1845 Walnut Street in Philadelphia. The

defense to the alleged crime was that the

petitioner was a passive witness to the

bank robbery, not an active participant

(Feseas Tr. 20). The prosecution's evi-

dence against petitioner was presented by

a Detective Robert Kuhlmeir [sic] of the

Philadelphia Police Department, who

testified concerning statements given to

him by both the petitioner and Donald

Harrison (Trial Tr. 534-591). The sub-

Stance of petitioner's statement was that

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the Harrison brother who actually robbed

the bank had told the petitioner his plans

to rob the bank (Trial Tr. 549), and

petitioner waited in the car while his

brother James was robbing the bank (Tr.

545). The substance of Donald Harrison's

statement was that he went into the bank

with James, thinking James was going to

cash a check (Trial Tr. 557-558), and that

it was petitioner's and James' idea to rob

the bank (Trial Tr. 561) (see pages 3, 4

and 5 of this report).

The state presented as its

witnesses the bank teller (Trial Tr. 428)

(who was not able to present any evidence

against petitioner), Policemen Fred Short

(Trial Tr. 452) and Charles Assman (Trial

Tr. 465), Detectives Michael John Duffy

(Trial Tr. 470), Richard Bova (Trial Tr.

485), Joseph Falcone (Trial Tr. 522), and

Robert Kuhlmeier (Trial Tr. 533), and

James Harrison (Trial Tr. 496) (who had

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The bank teller testified that

jat 4:45 p.m. on Friday, February 5, 1982,

“she was working at the teller's window

7 closest to the door of the bank when she

‘saw two (2) men come through the door

‘(trial Tr. 431-432). One of the men, who

dshe was unable to identify, waited at the

‘ brochure rack while the other man (she

‘later identified as James Harrison) came

‘to the window and presented a note which

’ stated "Give me all your money, I have a

gun" (Trial Tr. 433). The bank teller did

“not say she actually saw a gun and there

‘was no testimony that a gun was used in

the robbery. The bank teller gave James

Harrison all the bills in her top drawer

' as well as bait money which eventually

explodes leaving a red dye on the money

(Trial Tr. 433).

C-5

QED ye eT TT

MARE

_ James Harrison admitted to

| robbing the bank, and stated on direct

| examination that he went into the bank

“with his nephew, Donald Harrison, and when

the left the bank he got into a car in

which the petitioner was a passenger

(Trial Tr. 496-504). Although James

Harrison pled guilty to robbery and

conspiracy, he asserted on direct examina-

tion that neither his nephew, Donald

Harrison, nor his brother, the petitioner,

knew of his plan to rob the bank (Trial

Tr. 521). Apparently the jury chose not

to believe the witness.

On February 6, 1982, at 4:45

a.m., the petitioner alerted Policeman

Fred Short that he knew who committed the

robbery of the first [sic] Pennsylvania

Bank and gave Officer Short some money

with red dye on it (Trial Tr. 453-455).

The petitioner told Officer Short that one

of the males involved in the robbery was

C-6

is brother, James, who was waiting for

‘police outside a hotel on 19th and Arch

“Streets (Trial Tr. 457). James was

“arrested and $100.00 of the red stained

“money was retrieved from his wallet by

‘police (Trial Tr. 467-488). Later that

-same morning, the petitioner gave the

_ following statement to Detective Michael

_ John Duffy:

"On February 5, 1982, at

approximately 5:00 p.m., the

witness stated that 'X’ and 'yY'

came into the apartment, 1301

North 15th Street, second floor

rear, and 'Y' was carrying a

brown briefcase. '‘'Y' dumped all

this money with the red dye on

the floor. He started giving

the money, splitting it up

between him and 'X'. '‘'X' gave

me one hundred fifty dollars

which he owed me.

I know where the money came

from because of the red dye and

because 'Y' told me that he made

a big score.

I called 'X' to the side

and said let's go for a walk.

We went to the Apollo Hotel,

19th and Arch Streets.

C-7

We got a room and that's

when I started talking to him

about giving himself up. At

this time, 'X* told me that he

gave the lady a note at the

bank. She gave him a stack of

money and he ran out of the bank

and the money blew up.

"X' decided to give himself

up and I went to the phone and

called the cops. The officer

came and picked me up. We road

[sic] around the block and I

told him 'X' wanted to give

himself up.

We drove to the hotel and

picked up 'X’ outside."

Following James Harrison's

arrest on February 6, 1982, the police had

continued conversation with the petitioner

(Trial Tr. 536-538). Up until February

his, 1982, the petitioner was not a defen-

' dant in the case, but only a witness

(Trial Tr. 538). On February 19, 1982,

petitioner was arrested by Detective

Kuhlmeier after giving the following

statement, which the Detective read at

Ee ee ae ee ee ee. eee

trial (Trial Tr. 543-551):

;

TEER Vsti Ee wick,

ee b ee. we oat ye

(

7 - TDi red THe Z | berg evs : oa

- 4 ie “* p

. Sho ee a Al iaes Bh -

: = ]

ffs ie? -pet arog § Yate ;

eS eS ree,

ERE it Bins lie lah ing Rees ok

"It was Wednesday, 2-3-82.

We were sitting up at the house,

'x', 'Y' and me. I cleaned

windows at 1717 Spring Garden

Street, the Architect Building

and they paid me sixty dollars

in a check. I was in debt to

some people on 15th and Stiles

Street.

On Friday 'X' came back and

he showed me this check with his

name on it. '‘'Y' had given it to

him. It was one of the checks

that you have and I think it was

for fifty or twenty-five dol-

lars. ‘'X' came back and pulled

me into the bathroom and told me

that 'Y' had set him up with the

people he sold a ticket to and

that they were looking for him

to put a hit on him.

He wanted to leave town but

he said that he had a way to get.

the money and square himself.

That's when he told me he was

going to do the bank but he

didn't want me to go in with him

and he was going to take 'Y'.

He said that 'Z' would take us

down in his car and he was high

from drinking wine so he

wouldn't know what was going on.

We all went down in 'Z's

station wagon and he parked on

Sansom Street. I think at 20th.

Me and 'Z' stayed in the

car and _'X' and 'Y' went around

the corner for about ten min-

utes. They came running back

c-9

a are er

Bitar Wt

carrying a brown briefcase with

money in it with red stuff on

the money. It stunk and 'Y’

took the money from who was --

it stunk and 'Y' took the money

from who was in the front seat

next to 'Z' who was playing with

'Z' said what have you got

me into? '‘'X' told him, 'Let's

get out of here, I got your

money. '

‘Y' had the money and the

tear gas was hurting our eyes on

the way back to the house. When

we got back to my house 'Y'

jumped out because he had the

key. He ran into the door with

the money and left us outside.

The kids threw us the keys

and we went in. '‘'Y' had hid the

money under the couch and pulled

the curtain between the rooms so

my mother wouldn't know what was

going on. Then 'Y' started

counting the money out. It was

"s', “a - aoe *Y’.

THE COURT: I think there

is something left out there.

It was me, 'Z' and 'Y’.

THE WITNESS: Yes, that's

right. tc was me, et cetera, et

cetera.

He said here you go and

gave us each some of the money.

I got one hundred fifty dollars.

C-10

Rm aii) ENN aia re MUR EE RTS PT

ante

'Z' got three hundred dollars

and 'Y' and a girl split the

rest up. The real bad stuff

(money) was put in a bag and was

supposed to have been thrown

away.

After it happened, I

thought about it and looked at

the money. It had the stuff on

it. It wasau't real bad but I

was thinking about it. We all

threw in some money to a pot and

went and got high together. |

That was after 'Z' had gone and

after we got high I told 'X',

"Let's go, I want to talk to

you.'

Then we went down to the

Apollo Hotel, 19th and Arch and

rented a room.

I said, ‘Look, man, we had

better give up because with the

money being red and all, the

cops are going to catch us

anyway.'

Excuse me. I said, 'Look,

man, we had better give up

because with the money being red

and all the cops are going to

catch us.'

Anyway, 'X' had put those

-- anyway, 'Y' had put those

people on ‘'X' and they would get

me if they couldn't get him so I

told him let's call the cops.

He didn't want to do it. He

wanted to go back to the house

C-11

pe = Nelerd dake oe cn oo

SN LETRA BO pee

ae ga

: dentine ae ee Sek Me NSE

Feat ccna ot per sarib-eeatnipste~darae omiehms eres deaenkn

LR it Calla a iD ES Pr Agee AU aca ails ts AR ae Mange ae ute 4,

}

. wi a ae

and jack 'Y' up because he had

more money.

I said, ‘You know, 'Y' is

loud and he would start scream-

ing and put it on Momma and we

would have to kill him.' We

didn't want to do that so 'X'

said I was right.

I told him to stay there

and I went out to get the cops.

I went and called the police and

they came. The detective came

and I went up to him and told

him about what had happened and

that 'X’ wanted to give himself

up.

We moved away from the

hotel and we came back around

and 'X' was standing on the

corner and I called him over to

the car. The detective said,

"Do you want to give yourself

up?’ And he said, 'Yes", and

they took him. I had given the

money I had to the detective --

THE COURT: ‘Took him.'

THE WITNESS: They took him.

I had given the money I had to

the detective what I had left

and they took what 'X' had left,

too. They took us in here and

they got a statement from both

of us and then they let me go.

But they said to stay available.

Question. Whose idea was

it to rob the bank?

C-12

Answer. It was 'X's idea

and he got everybody else in on

it. ‘'X' didn't know what was

going to happen but he got a

share of the money at the house.

Question. You knew about

the robbery, didn't you?

Answer. Yes, I knew about

it. He told me in the bathroom.

The defense chose to present no

idence in its case-in-chief.

: Petitioner was convicted in the

Philadelphia County Court of Common Pleas,

‘after a jury trial on September 20, 1982,

‘bf one (1) count each of robbery and

‘criminal conspiracy, the a Louis

“G. Hill, presiding. Commonwealth of

“Pennsylvania v. William Howard Harrison,

‘Nos. 207 and 210, April Term 1982.

+ Post-verdict motions were denied and

‘petitioner was sentenced to not less than

; ten (10) nor more than twenty (20) years

“for the robbery conviction, and to not

_iess than five (5) nor more than ten (10)

- years imprisonment for criminal

C-13

: tek he connie mana te

; Shere oe

Ls + - . ,

onspiracy, to run concurrent to the

: obbery sentence. Petitioner filed an

ieppeal in the Superior Court of

‘rennsylvania where the judgment of

Msentence was affirmed on May 16, 1986.

“commonwealth v. Harrison, 556 Pa. Super.

Je16, ___ A.24 ____ (1986). Petitioner

‘then raised his points for appeal ina

$Petition for Allowance of Appeal to the

“ supreme Court of Pennsylvania which denied

/allocatur on December 29, 1986.

) Commonwealth v. Harrison, No. 548 E.D.

§ allocatur Docket 1986.

| During the period of time the

q petitioner's appeals were working in the

D stots system, he filed two federal habeas

| corpus petitions, April 30, 1984 and

) February 24, 1987, which were denied and

dismissed without prejudice for failure to

exhaust state remedies. On November 19,

1987, petitioner filed the instant peti-

> tion.

C-14

This case presents an unusual

d interesting procedural scenario.

Batson v. Kentucky, supra, was not decided

4 til four (4) years after the petition-

4 r's conviction, and not having had Batson

Ws a guidepost in 1982, the presiding

“Judge at petitioner's trial, the Honorable

Louis G. Hill, did not inquire into the

otives of the prosecutor in utilizing six

(6) of eight (8) available peremptory

7 hallenges to strike six (6) blacks from

he venire panel (the prosecutor used only

Jsix (6) challenges). The petitioner is

‘black.

Batson is to be applied retroac-

tively to cases pending on direct review

Jor those not yet final at the time Batson

was decided. Griffith v. Kentucky, 479

Ju.S. 314, 107 S.ct. 708 (1987). Batson,

however, is not to be applied retroactive-

ly to a case on federal habeas corpus

} review. Allen v. Hardy, 478 U.S. 255, 106

C-15

- igs

We.

%.ct. 2878, 92 L.Ed. 199 (1986). The

Petitioner's case was not final at the

ime Batson was decided on April 30, 1986,

‘because the Pennsylvania Supreme Court did

1 ot deny allocatur to the petitioner until

= 29, 1986. Therefore, although

‘Kkhis is a habeas corpus petition, Batson

‘should be applied retroactively. See also

‘eague vs. Lane, Director, Illinois

“Department of Corrections, et al., No.

87-5292, U.S. Supreme Court, decided

‘February 22, 1989.

In deciding that the Batson

tule, although a "clear break" from past

‘precedent, should be applied retroactive-

y, the court stated, "the fact that the

new rule may constitute a clear break with

‘the past has no bearing on the ‘actual

Bi nequity that results' when only one of

any Similarly situated defendants re-

“ceives the benefit of the new rule." Id.

at 479 U.S. 328, citing United States v.

C-16

Mnnson, 457 U.S. at 556 n.16. The

defendants Batson, Griffith and petitioner

Were all tried and convicted at about the

fame time period. Of note in the Griffith

@pinion was that it left open the question

whether retroactivity should apply to

Bases on habeas corpus petitions. Id.,

Gustice Powell concurring, p.329. Justice

ite, in his dissent in Griffith asked

hy the court would allow a new criminal

Procedure rule to be retroactive on cases

s ill on direct review but not on collat-

al review. Id. at 329 citing Allen v.

lardy, Supra. "“[I]t seems to me that the

@ttempt to distinguish between direct and

@ollateral Challenges for purposes of

Metroactivity is misguided. Under the

Majority's rule, otherwise identically

Situated defendants may be subject to a

@ifferent constitutional rule, depending

en just how long ago now-unconstitutional

@onduct eccurred and how quickly cases

C-i7

oceed through the criminal justice

stem." Id. at 331.

The rule of Allen v. Hardy,

Supra, although still viable, applies only

tc collateral review of convictions that

Became final before the Batson opinion was

| erery The Supreme Court has defined

inal to mean “where the judgment of

_ @onviction was rendered, the availability

6s appeal exhausted, and the time for

Petition for certiorari had elapsed before

pur decision in Batson v. Kentucky."

Allen v. Hardy, 478 U.S. at 258 n.1. The

*Setitioner had not exhausted his avail-

ability of direct appeal by the time

‘Batson was announced and therefore it was

i ot final. Petitioner's petition for

1 abeas corpus may be heard under the

“Griffith rule. See Teague v. Lane,

Director, Illinois De artment of Correc-

‘tions, et al., supra.

Cc-18

Because the prosecutor's motives

din using his peremptory challenges were

not determined in any of the state pro-

Deodinas, it is incumbent on this court to

Mhetermine the motives through an

Pvidentiary hearing, some six (6) years

Ollowing the trial.[+] Therefore, the

lime respondent points to Allen v.

, 106 S.Ct. 278, 2881 (1986), and

nited States v. Allen, 666 F.Supp. 847,

B53, in which the court aptly described

he problem in attempting to discover the

prosecutor's motives for exercising his

peremptory challenges in a criminal trial

wthat took place six (6) years ago:

would require trial courts to

hold hearings, often years after

the conviction became final, to

determine whether the

defendant's proof concerning the

prosecutor's exercises of

Challenges established a prima

facie case of discrimination.

Where a defendant made out a

prima facie case, the court then

would be required to ask the

prosecutor to explain his

reasons for the challenges, 4

task that would be impossible in

(Footnote Continued)

Retroactive application

C-19

district court in this instance must

determine whether the prosecutor's use of

peremptory challenges creates a prima

facie case of discrimination, Batson, 106

S.Ct. at 1723, and whether the prosecutor

has articulated race-neutral reasons for

the peremptory challenges. Id.

Initially, we must address

whether a prima facie case of purposeful

discrimination has been made by the

prosecutor's use of peremptory challenges

at the petitioner's trial.

(Footnote Continued)

| virtually every case since the

| a prosecutor relying on Swain

| f would have no reason to think

such an explanation would

someday be necessary.

Further adding to this difficulty is the

_ fact that the prosecuting attorney,

Charles Cunningham, had conducted over 100

jury trials at the time of this case, and

by the time he retired from the

Philadelphia District Attorney's Office in

1986, he had conducted over 200 jury

trials.

In order for petitioner to

establish a prima facie case of discrimi-

nation, petitioner must show he is a

member of a cognizable racial group and

the prosecutor has exercised peremptory

challenges to remove members of petition-

er's race from the venire panel. Batson,

476 U.S. at 96, 106 S.Ct. at 1723, citing

Castaneda v. Partida, 430 U.S. 482, 494,

97 S.Ct. at 1280 (1977). The facts

established during the evidentiary hearing

showed the petitioner to be black, and

that six (6) of six (6) peremptory chal-

lenges were used by the prosecution to

strike black venirepersons (Evidentiary

Hearing (EH), October 5, 1988, p.5). It

has been clearly established that blacks

are members of a cognizable racial group.

Peter v. Kiff, 407 U.S. 493, 92 S.Ct.

2163, 33 L.Ed. 2d 83 (1972).

"Second, the defendant is

entitled to rely on the fact, as which

C-21

TT ae eee ee ree

"7 oh tt eee os ge ee ea Be

a =

e ae ae ne: hs : - ; uy

ban Sots Beas

liu aaa Cae 4

33 Hester sy.

, 7.

Pete 2 2

ral

[sic] there can be no dispute, that

peremptory challenges constitute a jury

selection practice that permits 'those to

discriminate who are of a mind to

discriminate.'"

"Finally, the defendant must

show that these facts and any other

relevant circumstances raise an inference

that the prosecutor used that practice to

exclude the venireman [sic] from the petit

jury on account of their race." Batson v.

Kentucky, 476 U.S. at 96.

Based on the above-stated

criterion, it is clear that petitioner has

established a prima facie case of purpose-

ful discrimination. The petitioner is

black and all six (6) of the venirepersons

the prosecutor peremptorily challenged

were black (EH, 10/5/88, p.17). The

record indicates that the jury consisted

of eleven (11) white [sic] and one (1)

dark-skinned Indian (EH, 10/5/88, pp.

C-22

eet

“Th

- = a

hie

EF hon

Rei

and

cat

Mi s

aes

4 7

+ 98)

Per

pee

u¢

~ fi

‘a

as " ;

ita $

an ire

d =" we aa

od ¢

t aS es

4 _"

a ~ ae

—

¥ ee

een, 3.

Z aa ~

on - ? : /

; ' i ‘ wt

* *

- ‘4 f

J > -

| ~ yr, & 3

° 4 : .

c 7 m"{ j Wei

' f; ‘

* - >

Selatan ial oe

| i Ay 7 AAs

i , : ;

. p 7 . sy

ytals

nee

Pteee tee ee Oe

neg eer ee etre aaa Sapte vee

41-42; see petitioner's testimony at

-pp.55-56).*.

If all of the jurors of defen-

dant's race are excluded from

the jury, we believe that there

is a substantial risk that the

Government excluded the jurors

because of their race. Our

holding helps to avert that risk

by requiring the Government to

explain the reasons for its

challenges when no members of a

defendant's race are left on the

jury.

United States v. Chalen, 812 F.2d 1302,

1314 (10th Cir. 1987).

A prima facie case of discrimi-

nation having been established, the burden

shifts to the prosecutor to give race-

neutral reasons for having peremptorily

stricken the six (6) jurors. Batson, 476

U.S. at 96, 106 S.Ct. at 1723. Normally,

2tn Chief Justice Burger's dissent in

Batson, 476 U.S. 130, he notes the

problems courts face in reconstructing the

race of the jury panel: "[{e])ven after a

‘record' on this issue has been created,

disputes will inevitably arise." ——

C-23

“7?

a federal habeas corpus petitioner has the

burden of proving all facts entitling him

to a discharge from custody. Brown v.

Cuyler, 669 F.2d 155 (3d Cir. 1982),

citing Goins v. Brierley, 464 F.2d 947,

949 (3d Cir. 1972). It has been recog-

nized, however, that “with respect to

certain factual issues, the burden of

proof may be shifted to the state because

of specific policy considerations or

because the available evidence is likely

to be in the hands of the state." Id. at

949. In dealing with Batson issues, once

the petitioner has established a prima

facie case of discrimination, the burden

shifts to the prosecutor to give race-

neutral reasons for having peremptorily

stricken the jurors. Batson, 476 U.S. at

96, 106 S.Ct. at 1723.

In this case, the trial court

did not pursue a Batson analysis (because

there was no Batson analysis to pursue in

C-24

1982) and, therefore, this court is acting

as the finder of fact.

For the selection of the first

ten (10) jurors, Judge Hill conducted the

voir dire. A twelve-person venire panel

was first put into the jury box and they

were questioned by Judge Hill. Following

the questioning, Judge Hill asked the

lawyers if they had any questions. The

lawyers all declined the invitation to ask

questions (Trial Tr. 279). Four (4)

persons were selected for the jury from

this panel. Eight (8) people were then

brought into the courtroom to be ques-

tioned by Judge Hill. Following Judge

Hill's questions, he once again asked the

attorneys if they had any questions, and

again none of the attorneys asked ques-

tions. Seven (7) of these eight (8)

jurors were accepted. After the first

eleven (11) jurors had been accepted,

Judge Hill allowed the lawyers themselves

c-25

to conduct the voir dire. Fourteen (14)

jurors were eventually chosen, two (2) as

alternate jurors. Of the six (6) jurors

peremptorily stricken by the prosecution,

only two (2) were directly questioned by

the attorneys (Rudolph Gray (Trial Tr.

322) and Alma Nottingham (Trial Tr. 337)).

The defense did not use their peremptory

strikes.

The facts established during the

evidentiary hearing are as follows:

The prosecutor utilized six (6)

of his eight (8) available peremptory

challenges to exclude black persons from

the petitioner's jury (the prosecutor used

only six (6) peremptory challenges). The

jurors stricken were (1) Richard Edwards,

(2) Sammy Toney, (3) Alice Wright, (4)

Stanley Logue, (5) Rudolph Gray, Sr., and

(6) Alma Nottingham.

At the October 5, 1988

evidentiary hearing, the prosecuting

C-26

attorney in Commonwealth v. Harrison,

former Assistant District Attorney Charles

J. Cunningham testified first to his

general rationale in selecting a jury and

then gave his reasons for striking the

particular jurors. Cunningham testified

that when he picks a jury, he tries to

find people who will agree with him and

agree with each other so that "they could

reach a unanimous verdict” (EH, 10/5/88,

pp.6-7). Cunningham stated that he wants

the jury he picks to be able to hand down

a conviction, so he looks to whether a

potential juror or a family member of the

potential juror was someone “who had spent

time in prison, having been convicted of a

serious crime” (EH, 10/5/88, p.8).

Cunningham further noted that he takes

into consideration a potential juror's

employment history and educational level.

“A good employment history show a stable

lifestyle" and “their education tells me

C-27

something about the way they think" (EH,

10/5/88, p.9). He stated that while in

the District Attorney's office, he tried

over two hundred (200) jury trials. At

the time of the petitioner's trial, he

estimated he had tried over one hundred

(100) jury trials.

Cunningham testified that he did

not specifically remember this case but

that his memory would be refreshed by

referring to four (4) pages of handwritten

notes made contemporaneously wish thie voir

dire process of the petitioner's trial

(EH, 10/5/88, pp.10-11). These notes were

marked into evidence. These notes were

used by Cunningham to record juror re-

sponses to questions during the voir dire,

and so that he could keep "a running count

of peremptory challenges and whether they

were excused." He also explained certain

marks on the notes: "jurors that are

accepted, I circled the number and their

C-28

Mee. rs Soe

wee ee

oy,

awe

—_— = ————

Pee a ere

position in the box. Jurors that are

excused or stricken, ... I have a line

through their name or number...." (EH,

10/5/88, p.11).

By referring to both his notes

and the trial transcript, Cunningham

testified as to the teibons he struck the

individual jurors. For each individual

juror questioned in the voir dire,

Cunningham recorded notes "reflecting

answers that [he] thought were important

to [his] decision as far as accepting or

rejecting the juror" (EH, 10/5/88, p.13).

(1) As to Richard Edwards,

Cunningham wrote the words "56, llth

grade, in South Carolina, Wynnefield, 16

years, unemployed truck driver, three |

kids" (EH, 10/5/88, p.14). Cunningham had

written an "O.K." under this juror's name

meaning that Cunningham had initially

decided to accept him as a juror, but

subsequently decided to strike him (EH,

C-29

10/5/88, p.14). By referring to page 249

of the trial transcript, Cunningham

reasoned that he subsequently struck

Edwards because his oldest son had been

arrested in a bank for carrying a .357

magnum. "I didn't even bother writing

down in the notes the business about the

gun. That tells me that as soon as I

heard about the gun, I decided I didn't

want him” (EH, 10/5/88, pp.15-16).

(2) As to Sammy Toney,

Cunningham noted "56; South Carolina;

tenth grade, North Philadelphia 28 years;

laid off construction” (EH, 10/5/88,

p.19). Cunningham could-not remember why

he struck this juror but guessed that, "It

could have been as simple as he and Mr.

Edwards sitting next to each other in the

jury box. They're both 56 years old,

they're both from South Carolina. If the

two of them were getting along well, I

would not keep Tammy [sic] Toney after I

C-30

Te a ee

had stricken. Richard Edwards. Having

knocked his friend off the jury, I

wouldn't keep him. But I don't recalll

[sic] if that was the case" (EH, 10/5/88,

p.20). :

(3) The third Commonwealth

peremptory challenge was utilized against

Alice Wright. Again, written in his

notes, the word "0.K." is circled under-

neath this juror's name, and only after

hearing responses to voir dire questions

did he draw a line through her name

indicating that he rejected her. These

words were within his notes, “Georgia,

West Philadelphia 22 years; lived alone;

her son was a retired police officer” (EH,

10/5/88, p.21). Cunningham was not able

to remember why he decided to strike her

as a juror. "Just looking at these notes,

I don't know. I don't have her age down

here. The fact that her son is a retired

police officer, I assume she is an older

C-31

x Tete

— eee nas

Fg ae ae Se ob Oe a

woman. That could have been a factor; I

don't know" (EH, 10/5/88, p.22). The

record indicates that Alice Wright was

seventy (70) years old at that time (see

discussion hereir).

(4) As to Stanley Logue,

Cunningham recorded in his notes that this

potential juror was thirty-five (35) years

old, had two (2) years of liberal arts

education at Temple University, and was

from Southwest Philadelphia. Cunningham

cited his reason for not accepting Logue

as a juror: “liberal arts majors are not

good prosecution jurors. They're too

inquisitive; they look for doubt. That's

the nature of liberal arts education....

He's a person who might go back in jury

deliberations and raise issues that the

lawyers have not even considered, had not

presented, which is the most difficult

kind of juror, because you can rebut what

the other lawyer is doing. You can't

C-32

rebut what the iediieaies sail thinking on

their own and are liable to bring up in

jury deliberations" (EH, 10/5/88, p.23).

(5) The fifth Commonwealth

peremptory challenge was exercised against

Rudolph Gray, Sr. Cunningham wrote in his

notes “Roxborough; Conrail, his wife equal

Sears, meaning his wife works at Sears,

and interfere." Referring to the Septem-

ber 15, 1982 voir dire notes (p.323),

Cunningham remembered he struck this

potential juror because he had been

arrested for interferring [sic] with a

police officer. "[I] would not as a D.A.

want a juror who had been arrested

himself. He would more likely be critical

of the police, more likely be sympathetic

toward the defendant, and it's just not

the type of juror that you want” (EH,

10/5/88, p.25).

(6) The sixth Commonwealth

peremptory challenge was Alma Nottingham.

C-33

The District Attorney's notations reflect

that she was married, lived in Southwest

Philadelphia and worked in sales at

Woolworths. He also wrote “daughter =

cab." Cunningham was not able to, recon-

struct from his notes the reasons for

striking her, but by referring to page 340

of the trial transcript, he was able to

infer that she was stricken because she

was being tentative as to whether or not

she could be a good juror (EH, 10/5/88,

p27).

Upon cross-examination,

Cunningham asserted his conclusion that

Alma Nottingham was being tentative was

based on the following exchange which took

place at page 340 of the trial transcript:

Q. Any reason why you could not

be fair to both the defendants

and the prosecution in this

case?

A. I don't think so. I could.

probably be fair.

Q. You seem to hesitate a little

bit.

A. I hope to anyhow.

Q. You seem to hesitate a little

bit. Any reason?

A. No, no reason. I'll come to

a fair judgment for both of

them.

DISCUSSION OF LAW

Once a prima facie case of

discrimination in jury selection has been

shown, a prosecutor has the burden to come

forward witn race-neutral reasons to

explain the peremptory challenges.

Batson, 476 U.S. at 96, 106 S.Ct. at 1723.

The prosecutor's explanation need not rise

to the level of exercise of a challenge

for cause. McCray v. Abrams, 750 F.2d

1113, 1132 (2nd Cir. 1984); Booker v.

Jabe, 775 F.2d 762, 773 (6th Cir. 1985).

In order to rebut the defendant's prima

facie case of purposeful discrimination,

"[t]he prosecutor ... must articulate a -

neutral explanation related to the

C-35

particular case to be tried." Batson,

Supra at 98. "The prosecutor must give a

‘clear and reasonably specific'

explanation of his ‘legitimate reasons'

for exercising the challenges. Batson,

Supra at 98 n.20. The case upon which

Justice Powell most relied in writing the

opinion of the Court in Batson, attempted

to define the standard as requiring the

prosecutor to show "genuine reasons other

than group affiliation" or “some slight

bias that would not support a challenge

for cause.“ McCray v. Abrams, supra at

1130. By reading Batson alone, the

standard seems to be one where the

prosecutor must be able to articulate

explanations which are “neutral"; "clear

and reasonably specific"; “legitimate”,

and “genuine”, yet not rising to a level

for challenge for cause.

However, as then Chief Justice

Burger noted in his dissent of Batson,

C-36

po ae

ow hi Re

"nd

’

* oT rs

Te | ee

wage

"fa] ‘clear and reasonably' specific

explanation of ‘legitimate reasons' for

exercising the challenge will be difficult

to distinguish from a challenge for

cause." Id. at 127. Furthermore, Justice

Marshall warned in his concurring opinion

of Batson, “[w]jhen a defendant can estab-

lish a prima facie case, the trial courts

are forced [sic] with the difficult burden

of assessing prosecutors’ motives."

Citing King v. County of Nassau, 581

F.Supp. 493, 501-502 (E.D. N.Y. 1984).

“Any prosecutor can easily assert racially

neutral reasons for striking a juror, and

trial courts are ill-equipped to sec-

ond~-guess those reasons." Id. at 105-106.

The federal circuit courts have

helped to define the standard by identify-

ing those reasons posed by the prosecutor

in striking a juror (once the prima facie

case is established) and whether those

reasons were “race-neutral" in light of

C-37

Batson. Other than a review of these

34st Circuit - United States v.

Angiulo, 847 F.2d 956 (1988) (court held

peremptory challenges not racially

motivated where the reasons given were one

juror had provided false or misleading

statements in response to the government's

questionnaire; another had answered

questions in a “flip” manner; another

struck because of a recent move and the

care of a small child would be too

distracting thought the prosecutor; and a

fourth juror was from a small town where a

member of the defendants resided).

2nd Circuit - Roman v. Abrams, 822 F.2d

214 (1987) (court refused to believe the

prosecutor proffered reason that he struck

juror because the potential juror's

knowledge of electronics, bookkeeping, and

computers justified their exclusion

because such knowledge might prevent the

juror from accepting the reasonable doubt

standard of proof).

4th Circuit - United States v. Garrison,

849 F.2d 103 (1988) (court held it was a

racially neutral reason to strike two

black women because they chatted with each

other during the voir dire process and

gave other indications of boredom and

disdain for the process). See also United

States v. Woods, 812 F.2d 1483 (1987)

(court held that black juror appropriately

excused because he was a Charleston

resident, and the prosecutor contended the

(Footnote Continued)

C-38

cases, and the words of Batson itself, we

(Footnote Continued)

"Charleston Chronicle" was biased and

unfair in its comments on the case.

5th Circuit - United States v. Forbes, 816

F.2d 1006 (1987) (the hostile

posture/demeanor of one juror and fact

that another panel member's children had

experienced trouble with the law were

permissible reasons under Batson.

7th Circuit - United States v. Mathews,

803 F.2d 325 (1986) (the court held the

prosecutor gave racially neutral reasons

where jurors were peremptorily challenged

because one expressed reservation in

adequately appraising tape recorded

evidence and another was late for the voir

dire and was inattentive during voir dire

process evidencing a lack of commitment to

the prosecutor).

8th Circuit - United States v. Cloyd, 819

F.2d 836 (1987) (prosecutor stated reason

that he peremptorily struck juror because

the juror was familiar with Daily Liquor

Store, the place where the defendant was

expected to claim he was during robbery

was sufficient). See also United States

v. Love, 815 F.2d 55 (1987) (court held

prosecutor's reason was sufficient in

striking juror that had heard of business

owned by one of the witnesses).

9th Circuit - United States v. Lewis, 837

F.2d 416 (1988) (court held that

(Footnote Continued)

C-39

are given no other guidelines to determine

whether D.A. Cunningham's proferred [sic]

reasons rise to the level required by

Batson. We also have no reason to con-

clude that D.A. Cunningham exercised

purposeful discrimination or that his

motives and creditability [sic] are

suspect.

Considering solely the reasons

Cunningham gave for striking the jurors in

(Footnote Continued)

venireperson's age and lack of family may

have appeared relevant to prosecutor ina

case involving child abuse and could be

deemed racially neutral).

10th Circuit - United States v. Chalan,

812 F.2d 1302 (1987) (general reference to

juror's unsatisfactory background and

unspecified dissatisfaction with answers

in juror's questionnaire fail to satisfy

Batson).

lith Circuit - United States v. David, 844

F.2d 769 (1988) (court held racially

neutral reasons for striking black jurors

where reasons were one was pregnant,

another was an employee in the federal

government, and one's son was on

probation).

question, without comparing the stricken

jurors with those eventually empanelled on

the petit jury, those reasons appear

race-neutral. He struck Edwards because

his oldest son had been arrested ina

bank. In United States v. Vaccaro, 816

F.2d 443 (9th Cir. 1987), the fact that a

juror had a brother in prison for a

robbery conviction was deemed to be a

race-neutral reason for striking that

juror. In United States v. Cartlidge, 808

F.2d 1064 (5th Cir. 1987), the court held

it was a race-neutral reason for the

prosecutor to peremptorily challenge a

juror whose brother had been convicted of

robbery. Furthermore, this court finds

the fact that Cunningham had initially

Signalled this juror as “OK" (meaning he

would accept him), and struck the juror

only after hearing about the man's son's

conviction, is a strong inference that

c-41

ee nee =

: sehen tne ae

Cunningham was not striking the juror

because of his race.

Cunningham stated that he struck

Toney because he had stricken Edwards, who

had a lot in common with Toney, and the

two men might have struck up a friendship.

See United States v. Garrison, 849 F.2d

103 (4th Cir. 1988), (wherein [sic] a

similar situa, the prosecutor's

reasons for striking two seemingly

friendly jurors, was [sic] deemed

non-racial). The essence of Cunningham's

reason was that he didn't want Toney to

hold a grudge against him for having

stricken his friend. Cunningham had

testified at the evidentiary hearing that

he wanted as jurors “people who responded

well to me as opposed to responding well

to defense counsel and poorly toward me"

(EH, 10/5/88, p.7). Considering the above

reasons, and the nature of peremptory

C-42

challenge [sic], this court finds the

reason for striking Toney racially

neutral.

As to Wright, Cunningham was

unable to remember why he struck her, but

surmised it may have been because she was

too old (EH, 10/5/88, p.22). In United

States v. Cartlidge, supra, the fact that

one stricken juror was young, single, and

unemployed, was deemed to be racially

neutral. Wright was a juror that

Cunningham had initially thought to be

acceptable ("0O.K." was written in his

notes) and through the passing of six (6)

years is no longer able to remember why he

4wnat is the nature of the peremptory

challenge? "[A] prosecutor ordinarily is

entitled to exercise permitted peremptory

challenges ‘for any reason at all', as

long as that reason is related to his view

concerning the outcome of the case to be

tried...." United States v. Braun, 817

F.2d 674 (10th Cir. 1987), Citing Batson,

106 S.Ct. at 1718-1719.

C-43

eventually chose to strike her. Just as

in Edwards' case, the initials "O.K."

written in the prosecutor's notes dissi-

pates the inference that the prosecutor

struck this juror solely because of race.

Batson requires the prosecutor to articu-

late a race-neutral reason, and the

prosecutor has done this by citing the

fact that Wright was “old” (EH, 10/5/88,

p.22). The record indicates she was

seventy (70) years old. However, see

final review of notes herein.

Cunningham stated Logue was

stricken because his liberal arts educa-

tion background was likekly [sic] to

arouse an inquisitiveness that a

prosecutor would not like to have ina

juror. Cunningham thought Logue might “go

back in jury deliberations and raise

issues that the lawyers have not even

considered." This appears to be a

race-neutral reason.

C-44

Cunningham struck Gray because

he had previously been arrested for

interfering with a police officer. As in

the case concerning stricken juror Ed-

wards, it has been recognized by the

courts that peremptorily striking a juror

because the juror or a member of the

juror's family has been convicted of a

crime is a racially neutral reason. See

United States v. Vaccaro, supra; United

States v. Cartlidge, supra. Therefore,

the prosecutor satisfied his burden of

posing racially neutral reasons for

striking juror Gray.

Cunningham asserted that his

reason for striking Nottingham was that he

sensed she was being tentative in response

to voir dire questions which probed

whether she was able to be a "fair juror

(EH, 10/5/88, p.27). In United States v.

Cartlidge, supra, the Fifth Circuit

determined that a proper race-neutral

c-45

reason for striking a juror was that she

“avoided eye contact" when being ques-

tioned. It has also been deemed an

appropriately race-neutral reason to

strike a juror because she was nervous

about whether or not she could make the

right decision. United States v. Hawkins,

781 F.2d 1483 (11th Cir. 1986). Further-

more, the Ninth Circuit in United States

v. Vaccaro, supra, recognized an appropri-

ate race-neutral reason to be that the

juror exhibited a poor attitude in answer-

ing voir dire questions. Shereiices; this

court finds that the prosecutor's feeling

that Nottingham was unsure as to whether

she could be a fair juror is a race-

neutral reason for striking her.

Yet, our analysis must go deeper

than simply examining the reasons

Cunningham proferred for striking the six

(6) black venirepersons. All relevant

circumstances must be considered, such as

C-46

the prosecutor's questions and statements

during voir dire, United States v.

Clemons, 843 F.2d 741 (3d Cir. 1987); the

prosecutor's use of the voir dire process

to determine whether his concerns with the

venirepersons were real, United States v.

Brown, 817 F.2d 674 (10th Cir. 1987); and

whether the characteristics which prompted

the peremptory strikes are similar to

those characteristics of the empanelled

jurors. United States v. Wilson, 853 F.2d

606, 610 (8th Cir. 1988). If this court

finds that even one (1) juror was strick-

en, in violation of Batson [sic],> then

>Batson, Marshall concurring at 476

U.S. 105-106:

"([W]hen a defendant can

establish a prima facie case,

trial courts face the difficult

burden of assessing prosecutor's

[sic] motives. See King v.

County of Nassau, 581 F.Supp.

493, 501-502 (E.D. N.Y. 1984).

(Footnote Continued)

C-47

RN Ne Ens PAA VRIES ACO ES ie a him Pe Spy ea Ae Lie We are gee RO Lee he ar ae a aes Am

the motion for habeas corpus must be

granted. United States v. David, 803 F.2d

1567, 1569 (llth Cir. 1986).

The petitioner urges in his

brief that the prosecutor failed to

(Footnote Continued)

Any prosecutor can easily assert

racially neutral reasons for

striking a juror, and trial

courts are ill-equipped to

second-guess those reasons. How

is the court to treat a

prosecutor's statement that he

struck a juror because the juror

had a son about the same age as

defendant, see People v. Hall,

35 Cal.2d 161, 672 F.2d 854

(1983), or seemed

‘uncommunicative', King, supra

at 498 or 'never cracked a

smile' and, therefore, 'did not

possess the sensitivities

necessary to realistically look

at the issues and decide the

facts in this case,' Hall, supra

at 165, 672 F.2d at 856. If

such easily generated

explanations are sufficient to

discharge the prosecutor's

obligation to justify his

strikes on nonracial grounds,

then the protection erected by

the court today may be

illusory."

C-48

ibe

le ‘ ;

“sh

be ‘ )

: ?

| +

ia é .

‘

a .

4 E

2 rs ard gheaeh b- al inc alae SAO eat +

- ; : ae oe oe = S Oe a It me ‘

LY a al Sane a a 7 salad a -

explore his concerns with the challenged

jurors on voir dire. Furthermore, peti-

tioner asserts the wnite jurors accepted

were similar in those characteristics

which led to the striking of the black

jurors. No explanation is given by

petitioner as to why the two (2) defense

counsel did not strike the- objectionable

white jurors because of purportedly

objectionable characteristics or in the

exercise of their peremptory challenges.

For instance, the prosecutor

struck Edwards because his oldest son had

been arrested for carrying a gun inside a

bank. However, three (3) of the white

jurors accepted had a family member who

was convicted of a crime (Monica Bishop -

husband on probation for assault [Trial

Tr. 290-292]; Patricia Cantz - brother

arrested for selling marijuana [Trial Tr.

315-316); and William Lloyd - son arrested

for drunk driving [Trial Tr. 295]). When

c-49

hae a?

ip Paleiint o> Fe ee

pai eee eee

mand fh Tah Oh AD.

Lao et

ol ete SAA 2

asked in cross-examination (at the

evidentiary hearing) as to why he did not

strike any of these white jurors,

Cunningham stated that, "minor drug

offenses, traffic violations ... and

assaults, provided they're not serious

assaults, fall into the category of minor

offenses” (EH, 10/5/88, p.50). The

petitioner goes on to argue that

Cunningham did not adequately explore in

voir dire the details of the three (3)

wl. ce jurors' relatives' experience with

police and the courts, in order to con-

clude that the offenses were minor. The

respondent further argues that Edwards'

son's conviction was "minor" also in that

Edwards answered in voir dire that his son

was merely fined as a result of the

incident. Accepting both of the respon-

dent's arguments as true, this court finds

that the similarities between the crimes

of Edwards' son and the alleged crime of

c-50 *

sak 2h pt NTS ts

euitte

the petitioner were enough to infer that

Edwards was stricken for a non-racially

motivated reason. Edwards' son was

convicted of possessing a .357 magnum ina

bank. The petitioner was being tried for

a bank robbery involving the threat of a

gun. Furthermore, Cunningham stated that

he belived Edwards was not being entirely

truthful concerning the details of his

son's crime and conviction: "I had the

impression that Mr. Edwards either didn't

know the whole story or wasn't telling us

the whole story. That he was trying to

minimize what had happened to his son”

(EH, 10/5/88, p.40).

The reason for striking Edwards

given by Cunningham was racially neutral.

"In order to have a neutral explanation,

the characteristics of the struck individ-

ual cannot be present in those white panel

members not struck by the government."

United States v. Wilson, supra at 610.

C-51

cea ar

None of the three (3) white panel members'

relatives were arrested for or convicted

of a crime in any way similar to the crime

for which the petitioner was being tried,

but the conviction of Edwards‘ son was

very similar and, therefore, the strike

was acceptable.

The respondent almost concedes

that the prosecutor's strike of Gray was

racially neutral. Gray was stricken,

Cunningham testified, because he himself

had been arrested for interfering with a

police officer. The respondent is not

able to point to any of the white jurors

eventually accepted who, themselves, were

convicted of a crime, much less arrested

for inteferring [sic] with police.

Therefore, the striking of Gray was also

racially neutral.

Logue was struck because he had

been a liberal arts major at Temple

University. The respondent argues that

C-52

-”l

uae

Lo,

“

a t .

‘

’

= 1

)

a '

;

: .

° te . < patie . 2 phoh ein Noecigi Pee nee” Mae

sitet Dexa it Seg LR I ek eile

: a is = Soin ae EAN TAT OE

PE Oa sso nding NE EL LEGO LESS .

this would be a racially neutral reason

except for the fact that Logue actually

attended only two (2) years of college and

failed to go on to use his liberal arts

education by taking a job as a medical

authorizer for the Social Security Admin-

istration (Trial Tr. 301). Additionally,

the respondent argues that three (3) of

the white jurors had a greater education

than Logue, and although no evidence of it

exists in the record, argues that each of

the three (3) must have had more liberal

arts type training than Logue (Rachel E.

Livezey was a teacher; Thomas

Thakadipparumpil had obtained a college

degree in mathematics in India; and

Randall E. Slimak was a third year medical

student). Accepting as true the petition-

er's argument that these three (3) accept-

ed jurors had as much or more of a "liber-

al arts” type training than Logue, then,

on this basis, Cunninghams' [sic]

C-53

rationale may have been faulty. However,

Logue is the only venireperson of the four

(4) mentioned above who described his

educational background as one of “liberal

arts". Even though Cunningham's reasoning

may have been faulty, such a fault does

not destroy his avetibdasin to the point

that we could say his reason for striking

Logue was racially motivated.

Furthermore, there were reasons

for Cunningham to not strike Slimak,

despite the extensiveness of his educa-

tion. In response to whether he had a

friend or relative in law enforcement or

the court system, Slimak responded: "Well,

I have two friends, very close friends.

One works for the D.A.'s Office, a lawyer,

and another friend, an acquaintance, is a

police officer" (Trial Tr. 309). Certain-

ly a prosecutor would want this juror and

one wonders why defense did not strike

him. The selection of Thakadipparumpil

C-54

was also consistent with Cunningham's

philosophy in picking a juror when educa-

tion is a factor: "their education tells

me something about the way they think. Do

they think in concrete terms, or are they

inquisitive? They're things that you can

infer from their education” (EH, 10/5/88,

pp.8-9). It is more difficult to reason

why Cunningham selected Livezey and not

Logue. Nevertheless, there does [sic]

exist differences between the two.

Although Livezey stated she was a graduate

of Wesleyan College with a degree in

education, she never said she studied

"liberal arts." However, this argument

takes on less significance when the fact

is presented that neither Cunningham nor

any other lawyer asked questions during

voir dire following the trial judge's

questioning, and apparently the white

jurors were acceptable to all counsel. it

C-55

is only at this time as a matter of proof

under Batson do they become suspect.

The Third Circuit has pointed

out in United States v. Clemons, supra at

749, that the Batson Court "[c]ondemned

the practice of abusing peremptory chal-

lenges to further discriminatory ends,

[yet] it reaffirmed the importance of

peremptory challenges as a trial proce-

dure, and declined an invitation to

abolish the process." Citing Batson,

Supra at 1724 and n.22. To say that the

striking of Logue was discrminatory [sic]

because Livezey was accepted would be

moving towards the abolition of the

peremptory challenge. There is no evi-

dence on either side to indicate why-one

or the other was more or less acceptable.

Cunningham utilized a peremptory

strike against Nottingham because she

seemed to be "tentative" about whether she

could be a good juror (EH, 10/5/88, p.27).

C-56

The petitioner contends that two (2) other

white venirepersons, accepted onto the

jury, were similarly tentative. The

relevant portions of the voir dire tran-

script are set out below.

A) Alma Nottingham (Trial Tr.

340)

Q. Any reason why you could not

be fair to both the defendants

and the prosecution in this

case?

A. I don't think so. I could

probably be fair.

Q. You seem to hesitate a little

bat.

A. No, no reason. I'll come to

a fair judgment for both of

them.

Q. The Judge is going to in-

struct you that the defendants

are considered innocent until

proven guilty. Would you be

able to follow those instruc-

tions?

A. I'm pretty sure I will be.

Q. You're pretty sure?

A. yes.°

B) Monica Bishop (Trial Tr.

292-293) -

Q. Do you feel any hostility or

annoyance at the District

Attorney's Office, the police,

any of the authorities for this

incident that resulted in your

husband being convicted and put

on probation for this?

A. No.

Q. You don't?

A. No.

Q. What's that?

A. I don't think so.

Q. If you're selected to sit on

this jury, will you listen

carefully to the evidence?

A. Yes.

Q. Will you do your very best to

be fair to each of the two

defendants in this case?

A. Yes.

Srhis questioning was conducted by

Brian R. Williams, Esquire, counsel for

the defendant Donald Harrison.

C-58

tie $4 ce :

Q. Will you do your very best to

be fair to the Commonwealth of

Pennsylvania represented by the

district attorney over here?

A. yes.’

C) Margaret Matkowski (Trial Tr.

299)

Q. If you're selected to sit on

this jury, will you listen

carefully to the evidence?

A. Yes.

Q. Will you decide the case only

on the evidence and not on any

sympathy, favoritism or preju-

dice?

A. {No response).

Q. You have to say yes or no

because he has to write it down.

A. Yes.

Q. If you are selected, will you

ado your very best to be fair to

each of the two defendants?

A. Yes.

Q. And to the Commonwealth?

The trial judge, the Honorable Louis

G. Hill, conducted this questioning.

C-59

———=-—. se,

A. yes.®

Attempting to reconstruct a

juror's tone of voice, inflection, demean-

or, attitude, or truthfulness through the

use of a transcript is impossible.

However, even by viewing the transcript

alone, it is reasonable to suspect that

Nottingham may have been "tentative". By

viewing the transcript it seems that

Nottingham's demeanor was such to prompt

further questioning from defense counsel

because she seemed hesitant.

D.A. Cunningham stated that he

could not remember clearly why he peremp-

torily challenged Toney or Wright.

Cunningham had been able to recall why he

struck the other four (4) jurors.

It has been very difficult to

determine whether or not the striking of

Cc-60

Toney was racially motivated. As stated

earlier in this opinion, the reason given

by Cunningham for striking Toney was

racially neutral on its face. It was

based solely on his intuition that Toney,

who was sitting next to the stricken juror

Edwards, was becoming friendly with

Edwards because they were the same age and

both from North Carolina. Cunningham

reasoned that Toney could hold a grudge

against the prosecutor for having stricken

his friend, Edwarés. The petitioner

argues that this explanation is illogical

because Toney had no way of knowing which

attorney excused Edwards, being the

peremptorily [sic] challenges were made

anonymously. The Supreme Court has

enunciated in Batson that once a prima

facie case of discrimination is

established, it is the prosecution's

burden to come forward with a neutral

explanation for challenging the black

C-61

jurors (476 U.S. at 97). "The prosecutor

therefore must articulate a neutral

explanation related to the particular case

to be tried.” Batson, 476 U.S. at 98.

The explanation given by the prosecutor

must be clear, reasonably specific and

legitimate. Batson, 476 U.S. at 98, n.20,

citing Texas Department of Community

Affairs v. Burdine, 450 U.S. at 258.

Even in United States v. Garri-

son, supra (see footnote 3), other facts

existed other than that the two woman

[sic] jurors seemed friendly. They also

seemed bored, chatted with one another

during voir dire, and showed general

disdain for the entire process.

As mentioned earlier in this

opinion, it is understood how difficult it

must be for Cunningham to remember why he

peremptorily struck a juror six (6) years

before. It is not at all clear that

Cunningham had a discriminatory motive in

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striking Toney. However, Cunningham

explained his reason. It was clear and

reasonably specific and, except for the

fact that the juror was black, legitimate.

The petitioner presented no evidence as to

this juror, no witnesses, no attorneys,

nothing except reasonable argument which

requires us to go beyond what is before us

and find purposeful discrimination merely

on petitioner's argument. While I am not

overwhelmed with the prosecutor's logic,

there was little contradictory evidence to

question the difficult standard that

Batson requires.

Under the Batson standard, the

peremptory challenge of Wright is more

complicated as an evidentiary matter.

Cunningham suggested that he might have

stricken Wright because she was too old.

She had testified in voir dire that she

was seventy (70) years old. The entirety

of Cunningham's direct testimony

C-63

concerning the striking of Alice Wright in

the evidentiary hearing is as follows:

Q. All right.

I*d like to next direct your

attention to juror number 698, Alice

Wright.

Yes. That was the third --

THE COURT: The last name?

MS. CHAMBERS: Wright, W-R-I-G-

H-T.

THE WITNESS: That was the third

Commonwealth peremptory challenge.

Although, again, with Alice Wright, I

had written down O.K., then her

answers, the ones that I had recorded

were that she was from Georgia, West

Philadelphia 22 years; lived alone;

her son was a retired police officer.

Q. Now, the notation 9.K. would mean

— what to you at this time?

A. That means that she was okay. I

was going to take her as a juror,

that I was going to accept her.

Q. All right. But you did not,

obviously.

A. Right.

Q. And what if you can, tell us what

would be the reason that you would

strike her?

A. I don't know.

C-64

g. You don't have a present recollec-

tion, is that correct?

A. That's right.

Q. I guess my question would be:

Given this kind of a history that you

noted for her and your initial

impression that you would accept her

given your practice in voir dire,

what kind of reason would you have to

strike someone, to strike a juror?

- MS. KOLLER: Objection. It

calls for speculation as to why he

didn't know why he struck this juror.

MS. CHAMBERS: If I may, we're

trying to reconstruct a trial.

THE COURT: I'll hear the answer.

THE WITNESS: Just looking at

these notes, I don't know. I don't

have her age down here. The fact

that her son is a retired police

officer, I assume she is an older

woman. That could have been a

factor; I don't know.

The difficulty with this peremp-

tory strike is his several answers that he

did not know why he struck her and he did

not have a present recollection. Certain-

ly under those circumstances the evidence

fails to satisfy the evidentiary standard

of Batson requiring a “clear”, “reasonably

C-65

specific", "legitimate" and "neutral

explanation".

It is true that he had marked

this juror "OK" but then struck her. If

it was his opinion that she was too old,

there is nothing in the evidence to

contraduct [sic] that. That was his

judgment. Merely being seventy (70) years

old does not contradict that. Petitioner

argues that three (3) white jurors were in

their sixties. The fact that three (3)

white jurors were in their sixties does

not mean that they were too old.

Obviously a numerical age has its

Significance in some instances, but merely

a numerical age does-not lead to a

conclusion that a person is too old to

serve on a jury regardless of their race.

Anyone [sic] of the jurors could have been

too old in the mind of the prosecutor for

many reasons other than a numerical age.

Certainly the mother of a retired police

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officer would be the type of juror who a

prosecutor could easily expect to support

his point of view, whether she was black

or white.

The reason why I must reject

this explanation is not because of age but

because the prosecutor could not recall

his reason. The testimony which I credit

is summarized by his repeated statement "I

don't know." Since this is not a satis-

factory explanation under Batson, I

conclude the evidence is not acceptable

and the Commonwealth has failed to meet

the standard.

I do not believe that D.A.

Cunningham utilized his peremptory chal-

lenges in a discriminatory manner, but

only that he failed to satisfy the Batson

test. It is also clear from a review of

the trial record that the evidence at

trial against petitioner was overwhelming

and that he was not prejudiced by the

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peremptory challenges. A jury, whether

black or white, could easily have found

him guilty of the charges.

In this case, following the rule

of Batson and its consequences, we must

order a new trial. A new trial is neces-

Sary eventhough [sic] the evidence against

the petitioner is clear and his guilt

admitted by his own statement introduced

at trial. It would have been unusual for

any juror to ignore the evidence of guilt.

It is at this point Justice Stevens

suggests a different standard in Teague v.

Lane, Director, Illinois Department of

Corrections, et al., supra, which I quote:

"When a criminal defendant

claims that a procedural error

tainted his conviction, an appellate

court often decides whether error

occurred before deciding whether that

error requires reversal or should be

Classified as harmless. I would

follow a parallel approach in cases

raising novel questions of constitu-

tional law on collateral review,

first determining whether the trial

process violated any of the petition-

er's constitutional rights and then

C-68

sacramental

deciding whether the petitioner is

entitled to relief. If error oc-

curred, factors relating to retroac-

tivity -- most importantly, the

magnitude of unfairness -- should be

examined before granting the peti-

tioner relief. Proceeding in re-

verse, a plurality of the Court today

declares that a new rule should not

apply retroactively without ever

deciding whether there is such a

rule.

Id. at 2, Slip Opinion, Justice Stevens

concurring in part and concurring in

judgment.

RECOMMENDATION

I recommend that the Writ of

| Habeas Corpus requested under 28 U.S.C. §

2254 be GRANTED and that petitioner be

retried within ninety (90) days from the

court's final order or be released.

TULLIO GENE LEOMPORRA

CHIEF UNITED STATES MAGISTRATE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.