Filed: Nov. 17, 1994
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit 11-17-1994 Johnson v. Love Precedential or Non-Precedential: Docket 94-7168 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Johnson v. Love" (1994). 1994 Decisions. Paper 195. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/195 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeal
Summary: Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit 11-17-1994 Johnson v. Love Precedential or Non-Precedential: Docket 94-7168 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Johnson v. Love" (1994). 1994 Decisions. Paper 195. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/195 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals..
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Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
11-17-1994
Johnson v. Love
Precedential or Non-Precedential:
Docket 94-7168
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"Johnson v. Love" (1994). 1994 Decisions. Paper 195.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/195
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
N0. 94-7168
MELVIN L. JOHNSON
v.
WILLIAM LOVE, Acting Superintendent;
THE ATTORNEY GENERAL FOR THE STATE OF PENNSYLVANIA
Appellants
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civil Action No. 91-cv-00775)
Argued August 30, 1994
BEFORE: STAPLETON and GREENBERG, Circuit Judges,
and ATKINS,* District Judge
(Opinion Filed November 17, 1994)
William R. Scullion (Argued)
Deputy Prosecutor
Office of the District Attorney
York County Courthouse
28 East Market Street
York, PA 17401
Attorney for Appellants
James V. Wade (Argued)
Office of the Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Attorney for Appellee
*Honorable C. Clyde Atkins, United States District Judge for the
Southern District of Florida, sitting by designation.
OPINION OF THE COURT
STAPLETON, Circuit Judge:
This habeas corpus case comes to us for the second time
after having been remanded to the district court to allow the
state prosecutor to explain his peremptory challenge of a black
venirewoman in the petitioner's murder trial. The district court
found the explanation unsatisfactory and ordered the Commonwealth
of Pennsylvania to retry Melvin Johnson within 90 days or release
him from custody. The Commonwealth appealed, and we stayed the
effectiveness of the district court's order pending appeal. We
will affirm the judgment of the district court.
I. FACTS
Melvin Johnson is black. He was convicted of second
degree murder, robbery, burglary, theft, aggravated assault, and
criminal conspiracy by a jury in the Court of Common Pleas for
York County, Pennsylvania. The victims of these crimes were an
elderly white man and his sister, both of whom were beaten by
their assailants. The male victim was known to have solicited
sexual favors from young black boys over a period of time prior
to his death.
The venire for the jury consisted of fifty-two people,
only three of whom were black. After five white women and one
white man had been seated as jurors, the first black member of
the venire, Joyce Orr, was called for voir dire questioning. She
gave ambiguous responses to the questions of the prosecutor, Mr.
Rebert, concerning the death penalty. The trial judge sought to
clarify her views on that subject, and the prosecutor, without
waiting for clarification, exercised a peremptory challenge to
exclude her.1
1
. The following colloquy took place:
Do you have any strong feelings against
the death penalty that would prevent you from
serving on a Jury in this case?
A. No.
Q. Do you think the death penalty is
justified in certain circumstances?
A. No.
Q. You don't think it is justified?
A. No.
* * *
MR. REBERT: I would request a challenge
for cause on that basis, Your Honor.
THE COURT: We will ask a few questions
of the witness.
Although you do not feel it is justified
--
MR. REBERT: Excuse me. I will exercise
a preemptory [sic] challenge, Your Honor.
Before another juror had been seated, Vanessa Ferguson,
another black member of the venire, was called. After
ascertaining that she did not know the defendant or his counsel;
that she did not oppose capital punishment; that she had "no
strong feelings one way or the other about homosexuality"; and
that neither she, a relative, nor a friend had been either a
police officer or a victim of a crime, Mr. Rebert exercised a
peremptory challenge to exclude her. The defense objected and
the following exchange occurred:
MR. HARRIS: Your Honor, we oppose the
Commonwealth's exercising this particular
challenge. We believe he has exercised it
because this particular Juror is black, the
same race of the Defendant.
In the Commonwealth's question of the
Juror about the death penalty, I think she
indicated if the evidence showed that, she
could vote that way. Of course, I don't
think the Commonwealth has any real reason
other than race in this particular case to
exercise said challenge. So we oppose it.
MR. REBERT: Your Honor, preemptory
[sic] challenges are sometimes arbitrary and
even capricious by definition. I have a
basis for challenging this Juror. There is
no challenge for cause. I have a right to a
preemptory [sic] challenge and I'm going to
exercise it. If I have to state all my
reasons on the record, I would be happy to.
THE COURT: The Courts have already
ruled -- the appellate Courts have already
(..continued)
THE COURT: Fine. . . .
A. 25-26 (Appeal No. 92-7139).
ruled that preemptory [sic] challenges are
preemptory [sic] challenges; and as far as
the Court is concerned, the preemptory [sic]
challenge is just that. . . . We will not
question either side's preemptory [sic]
challenges.
A. 37-38 (Appeal No. 92-7139).
The remaining black member of the venire, Lucius
Breland, was not called until a jury had been seated and the
court was attempting to find alternates. He testified
unambiguously that he could not impose the death penalty even if
he believed it to be called for under the judge's instructions.
The prosecutor challenged for cause and Mr. Breland was excused
by the court.
The defense renewed its Batson challenge in a post
trial motion, but to no avail. Having exhausted his state
appeals, the defendant began a habeas corpus proceeding in the
District Court for the Middle District of Pennsylvania based on
28 U.S.C. ยง 2254. The district court accepted the trial court's
post trial conclusion that the defendant had failed to make a
prima facie showing under Batson and denied the writ of habeas
corpus. The defendant appealed to this court.
After recounting the facts and the history of the
proceedings, this court held that the district court had erred in
finding itself bound by the state court's conclusion that no
prima facie case of discrimination had been presented under
Batson v. Kentucky, 476 U.S. 79 (1986). It then noted
information supplied by counsel at oral argument:
At oral argument before this court, both
counsel indicated that the prosecutor is
still available and could appear at a habeas
corpus hearing in the district court. In
response to a question from a member of the
panel, counsel for the appellee stated:
"Yes, the district attorney is available and
as a practical matter that would be the most
expeditious thing to do in these cases."
Johnson v. Love, No. 92-7139, Mem. Op., filed June 18, 1993, at
App. 100. Based on this understanding, the court did not
undertake an analysis of whether the record revealed a prima
facie case of discrimination:
[W]e see no need to insist on a wooden
adherence to a procedural process intended
for the benefit of the state when a
prosecutor chooses to proceed expeditiously
and put a defendant's challenge to rest. In
distinguishing a previous decision by this
Court, the appellee's brief in the case at
hand reads: "Here the District Attorney
offered to place his reasons for the use of a
peremptory challenge on the record at the
time of the strike." Had that offer been
accepted, it seems likely the issue presently
before us would have long since been
resolved.
We think that, in these circumstances,
continuing uncertainty in this case can be
resolved by a hearing in the district court
at which time the prosecutor's offer can be
accepted, albeit belatedly, without the
necessity of inquiring into whether a prima
facie case was established. After the
prosecutor states his reasons for the
peremptory strike, the district court may
evaluate his explanation in light of Batson
and its progeny.
App. 101-02.
On remand, Mr. Rebert was called to testify at an
evidentiary hearing. He disclaimed any recollection of his
reason or reasons for challenging specific jurors. He did offer
the following comments on the voir dire process in this case:
A. . . . In this particular case . . . I was
concerned about the victim and how potential
jurors might feel about the victim, he was
not a stellar type individual, and I had some
concerns about the type of people who were
going to sit in judgment on that case when
this victim was involved in the kind of
activity he was involved in.
Obviously, you, know, it was a pretty
brutal crime, and I didn't think that the
jurors would have much sympathy for the
alleged perpetrators, but I was very much
concerned that the victim maybe [sic] more of
a factor than he should be in this crime.
Q. Given the victim's activity, whether
there was any particular trait of a juror
that you would deem antagonistic to the
Commonwealth's goal of seeking a death
penalty?
A. I don't know that I can say that for
certain. I think I may have been a little
bit reluctant, for lack of a better word, as
far as the women were concerned because this
was a very distasteful scenario. Any
homicide obviously is distasteful, but I
thought the facts of this case would cause
one to be a little bit more sensitive than
another to not react well to the Commonwealth
and to the victim. That's a pretty generic
statement, but that's about all as I recall
about this selection process.
* * *
Q. Let's move to Vanessa Ferguson. The
record shows that she was Commonwealth Strike
No. 6, and she was black. Why did you strike
her from the panel?
A. I do not specifically recall. I can say
that I indicated on the record that I did
have my reasons. I can say in all candor to
the Court that those reasons were not race
related in the sense that I was striking her
simply because she was black. However, I
cannot say that I specifically recall what
those reasons were. As I said earlier, the
victim of a crime was not an individual who I
felt would get a lot of sympathy from people,
certainly not a lot of sympathy from a young
black girl; however, I cannot specifically
recall the reason for my challenge.
App. 28-29, 30-31.
On cross examination, Mr. Rebert confirmed his lack of
specific recollection:
Q. Well, in any event, the reasons that you
were prepared to state to Judge Erb back in
October of 1986 you cannot specifically
recall those reasons right here today?
A. No, sir, I can't.
Q. And the notes that you might have made
concerning what the strikes are are not in
the file?
A. No, sir.
App. 33.
Mr. Rebert's testimony concluded with the following
exchange:
THE COURT: Mr. Scullion, do you have
any other examination of this witness?
MR SCULLION: No, Your Honor. The rest
will be left to argument.
THE COURT: Thank you very much, Mr.
Rebert.
THE WITNESS: If I may point something
else out, Your Honor. The other thing that
perhaps has not been noted for the record,
counsel for the Defendant was also black and
that was another factor that I had to take
into consideration when selecting a jury. I
certainly would not strike a black juror
simply because the juror was black or because
of the overall facts of this case and the
fact that the subject was black and the
attorney was black, that would not have been
my reason for the strike.
App. 37-38.
The district court found that Mr. Rebert had no
specific recollection as to his reason for excluding Ms.
Ferguson. It noted that Rebert purported to recall "an overall
strategy of eliminating women from the jury panel 'due to the
brutal nature of the crime and the non-sympathetic background of
the victim.'" App. 93. The district court concluded, however,
that this did not satisfy Batson's requirement of "a 'clear and
reasonably specific' explanation of [the prosecutor's]
'legitimate reasons' for exercising" his peremptory challenge.
476 U.S. at 98 n.20. The district court further concluded that,
in light of the fact that the first five jurors seated, as well
as one alternate, were women, this "proffered reason miserably
fails to square with the actual events that transpired during
voir dire." App. 93. Because the district court viewed the
Commonwealth as having a burden under Batson of coming forward
with a non-discriminatory explanation of its challenge of Ms.
Ferguson and because it rejected as pretext Mr. Rebert's
speculation regarding his reason for that challenge, the district
court ordered the release of the petitioner in the event he was
not promptly retried.
II. BATSON STEP ONE: Prima Facie Case
We begin with the holding of Batson and the teachings
of Hernandez v. New York, 500 U.S. 352 (1991), concerning the
procedure to be followed when the holding of Batson is invoked
during voir dire. Batson held that the prosecution violates the
Equal Protection Clause of the Fourteenth Amendment when it
exercises a peremptory challenge in a racially discriminatory
way. When a peremptory challenge is objected to on Batson
grounds, a three step process ensues:
First, the defendant must make a prima facie
showing that the prosecutor has exercised
peremptory challenges on the basis of race
. . . . Second, if the requisite showing has
been made, the burden shifts to the
prosecutor to articulate a race-neutral
explanation for striking the jurors in
question. . . . Finally, the trial court
must determine whether the defendant has
carried his burden of proving purposeful
discrimination.
Hernandez, 500 U.S. at 358-59. There is thus a threshold
requirement before the court is to call upon the state to explain
its challenge; the defendant must show that there is "some reason
to believe that discrimination might be at work." United States
v. Clemmons,
892 F.2d 1153, 1156 (3d Cir. 1989), cert. denied,
496 U.S. 927 (1990).
The Commonwealth argues before us that it has no duty
under Batson to come forward with a non-discriminatory
explanation. This is true, it maintains, because petitioner
never presented a prima facie case under Batson. Petitioner
counters that the prima facie case issue became moot when the
prosecutor offered at trial to explain his reason for challenging
Ms. Ferguson and that, in any event, the record reflects a prima
facie case. We agree with the Commonwealth that the prosecutor's
unaccepted offer at trial did not moot the prima facie case
issue. We conclude, however, that the Commonwealth's renewed
offer before this court and its acceptance rendered the prima
facie case issue moot. We further conclude that, even if we were
not bound under the applicable precedents to assume the existence
of a prima facie case, the record in this case, taken as a whole,
reflects one.
A.
As the plurality opinion of the Supreme Court in
Hernandez indicates, the issue of whether the threshold
requirement of a prima facie showing has been met becomes moot if
the prosecution voluntarily places its explanation on the record
and the trial court makes the rulings required at the second and
third step of a Batson analysis:
Once a prosecutor has offered a race-neutral
explanation for the peremptory challenges and
the trial court has ruled on the ultimate
question of intentional discrimination, the
preliminary issue of whether the defendant
had made a prima facie showing becomes moot.
Hernandez, 500 U.S. at 359.
We applied this mootness rule in United States v.
Uwaezhoke, 995 F.2d 388 (3d Cir. 1993), cert. denied,
114 S. Ct.
920 (1994), where the prosecutor, in response to a question from
the court before it had ruled on the prima facie case issue,
explained why he had exercised his peremptory challenge. We
there observed:
While we continue to stress the
importance of the first step of Batson, we
note that any issue regarding the existence
of a prima facie showing of discrimination
becomes moot where, as in this case, the
prosecutor offers an explanation of the
peremptory challenge before the district
court has "expressly address[ed] the prima
facie issue". In so holding, we follow the
conclusion of the plurality in Hernandez
. . . . If the government is found at any
subsequent stage of the case either to have
tendered an explanation that is not race
neutral or to have acted with racial animus,
the conviction must be overturned without
regard to whether the defendant established a
prima facie case.
Id. at 392.
We made a similar observation in United States v.
Clemmons, 892 F.2d at 1156:
[O]nce a prosecutor attempts to explain a
peremptory challenge, we believe the trial
and reviewing courts should look to the
entire record to determine if intentional
discrimination is present. If the
prosecutor's explanation raises more concern
than it puts to rest, courts cannot
effectively close their eyes to that fact by
simply deciding that the defendant has not
made out a prima facie case.
Petitioner urges that this case is like Hernandez,
Uwaezhoke, and Clemmons and that the prima facie case issue
became moot when Mr. Rebert voluntarily offered at trial to
explain his reasons for challenging Ms. Ferguson. We believe
petitioner misreads those cases, however. There is a substantial
difference between an explanation that is placed on the record
and subjected to judicial scrutiny and an offer to explain that
is rejected. In each of these three cases, the court was
addressing a situation in which the prosecutor had explained his
challenge and the court had made a finding at trial as to whether
intentional discrimination had played a role. In such
situations, a reviewing court must address the second and third
Batson issues, i.e., whether the prosecutor's articulated reasons
were race neutral and whether those reasons were a mere pretext
to hide intentional racial discrimination. Where, as here, the
prosecutor offered to explain his reasons, but was prevented by
the court from doing so, we think the considerations that
prompted the mootness holding in Hernandez, Uwaezhoke, and
Clemmons are not implicated.
When the prosecutor has tendered an explanation and the
trial court has ruled on the neutrality and bona fides of that
explanation, the only circumstance in which the presence or
absence of a prima facie case could become legally relevant is
where, at the post-trial motion or appellate review stages, there
is room to debate the correctness of the trial rulings with
respect to the neutrality of the explanation or the prosecution's
good faith in representing that it was the true reason for the
challenge. In such circumstances, public confidence in the
criminal process will be jeopardized if the reviewing court is
permitted to avoid the ultimate issue of whether invidious
discrimination occurred by relying on the absence of a prima
facie case.
The same concern is not implicated where, as here, the
prosecution offers to explain its challenge, but the trial court
forecloses it from doing so and forges ahead with the trial. In
such circumstances, we do not believe that public confidence will
be jeopardized if a reviewing court subsequently determines that
the record provides no substantial reason to believe that
discrimination may have occurred.
Contrary to the petitioner's suggestion, we do not read
Hernandez, Uwaezhoke and Clemmons as holding that the prosecution
always loses the right to rely upon the absence of a prima facie
case whenever it voluntarily offers to explain, regardless of
whether it was permitted to do so. Moreover, we believe such a
rule would be unfair. Where the prosecutor is foreclosed by the
court from putting his explanation on the record, in the absence
of a prima facie case, there is simply no justification for
putting the burden on the state of coming forward with a
satisfactory explanation in post-conviction relief proceedings
that may occur many years after the conviction.
B.
These conclusions regarding the effect of the
proceedings before the trial court do not end our mootness
inquiry. The appellate proceedings in this case were unusual.
While the Commonwealth's offer to explain its reasons for the
preemptory challenge of Ms. Ferguson was not accepted by the
trial court, that offer was renewed before this court and it was
accepted in our earlier opinion. On remand, the Commonwealth
attempted an explanation. The district court then concluded that
the Commonwealth's explanation, in the words of the Clemmons
court, "raise[d] more concern than it put[] to bed." 892 F.2d at
1156. At that point, the prima facie case issue clearly became
moot under Hernandez, Uwaezhoke and Clemmons, and, accordingly,
this court is no longer free to dispose of this matter on the
basis of that issue.
As we explained in Uwaezhoke and Clemmons, to allow the
absence of a prima facie case to be case dispositive when the
record raises serious questions about the prosecutor's
motivations would defeat one of Batson's principal purposes -- to
provide assurance to the defendant and the community that
criminal judgments are not tainted by invidious discrimination.
Where the record as a whole as ultimately developed permits a
reasonable argument that the judgment is so tainted, the issue of
taint must be resolved; it cannot be avoided by a finding that
the defendant failed to present a prima facie case. Accordingly,
consistent with the teachings of Hernandez, Uwaezhoke and
Clemmons, we can only proceed on the assumption that such a
showing was made. This means that the petitioner's conviction
cannot stand in the absence of a race-neutral explanation from
the Commonwealth for its exclusion from the petit jury of the
second black venireperson. Batson, 476 U.S. at 97.
C.
While we thus believe that our precedents require us to
assume that petitioner made a prima facie showing of
discrimination, we would be constrained to reach the same result
even if we were free to address the prima facie case issue. At a
minimum, the rationale of the cases we have discussed would
require us to consider the entire record, including the hearing
on remand, in order to determine whether a prima facie case was
present, i.e., whether there is reason to believe that
discrimination may have been at work in this case. When Mr.
Rebert's remarks at that hearing are added to the other record
evidence supporting an inference of discrimination, we conclude
that there is enough evidence to require the Commonwealth to meet
the explanation burden imposed by Batson.
As the Supreme Court pointed out in Batson, when making
a Batson challenge, a member of a racial group that has
traditionally been the victim of racial discrimination in our
society is entitled to rely upon that history as well as on "the
fact . . . that peremptory challenges constitute a jury selection
practice that permits 'those to discriminate who are of a mind to
discriminate.'" Batson, 476 U.S. at 96 (quoting Avery v.
Georgia,
345 U.S. 559, 562 (1953)). In addition, one who objects
to a challenge on the basis of Batson is entitled to rely on "any
other relevant circumstances" tending to support an inference of
discrimination.
Id. at 96. When Mr. Rebert's challenge of Ms.
Ferguson is put in context using the record as a whole, we
believe there is substantial circumstantial evidence tending to
support such an inference.
Mr. Rebert was prosecuting a case in which the
defendant was black. It was also a case in which the defendant's
attorney was black, and we know from Mr. Rebert's testimony
during the remand hearing that this "was another factor that [he
felt he] had to take into consideration when selecting a jury."
App. 38. The crime involved in this case was one of violence,
and both victims were white. The jury would learn that one of
these victims had solicited sexual favors from young black boys.
In such circumstances, a prosecutor still burdened with a
stereotypical view of the world might well believe that a black
juror would be more sympathetic to the defendant and less
sympathetic to the victims than would a white juror.
Six jurors had already been seated when Mr. Rebert was
first presented with the choice between exercising a peremptory
challenge and allowing a black person to sit as a juror. At that
point, he still had more than six peremptory challenges
remaining. It must have been apparent to him that he might well
have the capability of causing the jury to be without black
representation.
Mr. Rebert's first opportunity to challenge a black
person came when Ms. Orr was called. He ascertained that she did
not know the defendant or his counsel. He then asked about her
views on capital punishment and received an answer that the
court, at least, thought to be ambiguous. After the court had
undertaken to seek clarification but before the matter had been
clarified, Mr. Rebert exercised a peremptory challenge. While
the Commonwealth understandably attributes this challenge to Ms.
Orr's views on capital punishment, Mr. Rebert's failure to allow
her to explain her views on that subject raises a question as to
whether that was the basis of his decision. The trial record
suggests no reasons for the challenge other than Ms. Orr's race
and views on capital punishment.
The only other time Mr. Rebert was faced with a choice
between exercising a peremptory challenge and letting a black
person be seated as a juror, he once again exercised a peremptory
challenge. The trial record reveals nothing about Ms. Ferguson
that might cause a prosecutor to be concerned about her
objectivity.2 When asked at the remand hearing about the
challenge of Ms. Ferguson, Mr. Rebert could only indicate that he
would not expect a "young black girl" to have a lot of sympathy
for a man who solicited sexual favors from young black boys. He
did not explain why he believed a young black girl would have
less sympathy for such a person than a young white girl.
2
. During the hearing on remand, Mr. Rebert indicated that he
had reviewed the trial transcript and he referred the court to
the following segment of the defense's questioning of Ms.
Ferguson which, according to Mr. Rebert, gave him "cause for
concern," App. 32:
Q. I'm going to ask you a few questions;
again, not to embarrass you. If the evidence
-- you hear the evidence and the evidence
showed that Mr. Johnson did not participate
in the killing, participate in the beating,
do you feel that you could vote an acquittal
of not guilty in that case?
A. I would have to hear the evidence.
Q. Listen to my question. You heard the
evidence, you listened to it and the evidence
showed that he did not participate in the
killing, he did not beat the man, do you feel
that you could vote an acquittal of not
guilty of that particular charge in that
case?
A. Yes, I could.
A. 35 (Appeal No. 92-7139). While petitioner was not the person
who administered the beatings to the victims, we do not view Ms.
Ferguson's answers as raising concern about her objectivity.
We are thus presented with a case in which a prosecutor
harboring discriminatory views would not only have the
opportunity to discriminate but would also have strong motivation
for doing so. On both occasions when the prosecutor had the
choice between excluding or including a black person, he chose
exclusion. The record reveals nothing about either prospective
juror that would clearly cause a prosecutor free of racial
stereotyping to question his or her objectivity.
The circumstantial evidence we have cited does not
mandate a conclusion that discrimination occurred, but the issue
before us is whether there is sufficient reason to believe that
discrimination may have been at work here to require the state to
come forward with an explanation of its actions. We conclude
that there is. We acknowledge the possibility that, if Mr.
Rebert's memory of the trial was still intact, the Commonwealth
might well have provided an innocent explanation. It is
unfortunate that this is not the case, but the passage of time
cannot fairly be laid at petitioner's feet and it would be even
more unfortunate if petitioner's conviction were allowed to stand
without the assurance of a bias-free trial that Batson requires.
III. BATSON STEP TWO: Race-Neutral Explanation
Turning to the required second step in a Batson
analysis, we are presented with two issues: (1) whether the
Commonwealth's failure to produce a prosecutor with a specific
recollection concerning the reason for the challenge alone
requires a conclusion that it has failed to meet its second-step
burden of providing a race-neutral explanation, and (2) if not,
whether the explanation tendered by the Commonwealth met that
burden.
A.
During the hearing before the district court, Mr.
Rebert admitted that his memory had faded and that he could not
specifically recall the reason for exercising a peremptory
challenge against Ms. Ferguson. The district court concluded
that "[t]he prosecutor's failure to remember his reason for
excluding Ferguson eliminates the need for the court to evaluate
his reason under Batson and, more importantly, entitled Johnson
to a new trial." App. 90. This case does not require that we
rely on this view of the law, and we expressly decline to endorse
it.
In Batson, the Court instructed that at the second step
"the burden shifts to the State to come forward with a neutral
explanation for challenging black jurors." 476 U.S. at 97. In
Hernandez, the Court described this burden as the burden "to
articulate a race-neutral
explanation." 500 U.S. at 358-59.
Both of these descriptions came in the context of instructions on
the state's burden at trial when a Batson objection is made and
supported by a prima facie case. In this context, the prosecutor
who has just made the peremptory challenge is present and his or
her "articulation" of an explanation is, of course, competent
evidence of the reason or reasons for the challenge.
Given the context of the Supreme Court's observations
and the purpose of the state's burden at this stage, when a court
is called upon to apply Batson in a post-trial context, as we are
called upon to do here, we believe it must insist that the state
not only articulate a race-neutral explanation but also come
forward with competent evidence of the prosecutor's state of mind
when making the challenge.3 We are unprepared to hold, however,
that the state's burden can never be carried without direct
evidence from the decisionmaking prosecutor regarding his or her
state of mind.
There will undoubtedly be post-conviction relief
proceedings in which the state, by reason of death, absence, or
faded memory, will be unable to produce a prosecutor with a
specific recollection of the reason for a challenge alleged to
violate Batson. Courts frequently are required to draw
inferences from circumstantial evidence regarding a decision-
maker's state of mind, however, and we are unwilling to rule out
the possibility that the state may be able to satisfy its step
3
. The Court in Batson analogized the state's burden to that of
the employer in an employment discrimination case after the
plaintiff has tendered a prima facie case. The employer's burden
in that context, while frequently described as the burden of
articulating a legitimate reason for the adverse employment
action, is a burden of production. St. Mary's Honor Center v.
Hicks, 113 S. Ct. 2742, 2748 (1993).
two Batson burden by tendering circumstantial evidence. In some
post-conviction relief proceedings, it may well be possible to
reach a reliable conclusion regarding the true reasons for the
challenge based upon the nature of the case, the transcript of
the voir dire of the challenged juror and other prospective
jurors, contemporaneous notes of the attorneys involved, and any
other available evidence.4
While we thus conclude that circumstantial as well as
direct evidence can be used to carry the state's burden of
production at the second step in a Batson analysis, Batson does
require that the state's evidence, direct or circumstantial, be
4
. While we have no occasion to comment here on the sufficiency
of the state's evidence in United States v. Nicholson, 885 F.2d
481 (8th Cir. 1989), the Eighth Circuit Court of Appeals there
held that the state had met its second step burden with
circumstantial evidence. The possibility that the state's burden
may be met in this way was also recognized by the Court of
Appeals for the Second Circuit in United States v. Alvarado,
923
F.2d 253, 256 (2d Cir. 1991).
The district court in this case relied on our opinion in
Harrison v. Ryan, 909 F.2d 84 (3d Cir.), cert. denied,
498 U.S.
1003 (1990), for its holding that Johnson was automatically
entitled to a new trial because of the prosecutor's failure to
recall his reason for excluding Ferguson. Harrison is
distinguishable, however, because the prosecutor in that case
offered no explanation for excluding one of the six black
venirepersons he had struck from the jury, but simply asserted at
a hearing before a federal magistrate that he could not recall
his reasons. It was based on the prosecutor's assertion that he
did not know the reason he struck a black venireperson that this
court affirmed the order for a new trial.
Id. at 987. We do not
read Harrison to suggest that a state cannot be permitted to
reconstruct the prosecutor's rationale for excluding a juror
during a later Batson hearing when the prosecutor admits to
having no recollection of his motivations at the time.
such that, if credited, it will establish that invidious
discrimination played no role in the prosecutor's challenge.
Stated conversely, the Batson inquiry ends and the conviction
must be vacated at the second stage of the analysis if the
state's explanation is such that, taken at face value, it either
demonstrates an equal protection violation,
Uwaezhoke, 995 F.2d
at 392, or would otherwise be inadequate as a matter of law to
support the conviction.
Batson, 476 U.S. at 98 (neutral
explanation unrelated to the particular case to be tried or one
consisting solely of the prosecutor's denial of discrimination
inadequate as a matter of law). The state's circumstantial
evidence in this case failed to meet this requirement.
B.
The explanation tendered by the Commonwealth at the
remand hearing, even if taken at face value, does not provide
assurance that race played no role in Mr. Rebert's decision to
challenge Ms. Ferguson. During that hearing, Mr. Rebert
testified that he was trying to strike jurors who might not be
sympathetic with the petitioner's victim. He was especially
concerned with the objectivity of women jurors because of the
anticipated evidence at trial regarding the solicitation of
homosexual favors from young black males by the victim. In
explaining his reasons for striking Ferguson, Mr. Rebert said
As I said earlier, the victim of the crime
was not an individual who I felt would get a
lot of sympathy from people, certainly not a
lot of sympathy from a young black girl.
App. 31.
On its face, this explanation for the striking is not
race-neutral. It is based on the assumption that Ms. Ferguson's
objectivity would be impaired in part because she was black and
because the deceased victim of petitioner's crime had victimized
black children. We find this assumption indistinguishable in
principle from an assumption that Ms. Ferguson's objectivity
would be impaired because the defendant is black, an assumption
that the Equal Protection Clause clearly forbids. Batson, 476
U.S. at 97. Both assumptions are based on a stereotypical view
or intuition that black people, because of their race, will
relate to other black persons in a way that may preclude them
from basing a verdict solely on the relevant evidence. In
somewhat similar circumstances, we have held that the state's
explanation was not race-neutral. See Jones v. Ryan,
987 F.2d
960, 973-74 (3d Cir. 1993).
In addition, Mr. Rebert gave further testimony that
precludes a finding that the Commonwealth's explanation was race-
neutral. At the close of the hearing, he volunteered that
counsel for the defendant was also black and that this was
another factor that he "had to take into consideration when
selecting a jury." App. 38. Although Mr. Rebert insisted that
he would not have striken Ms. Ferguson because she was a member
of the same minority group as the defendant and the defendant's
attorney, on its face, the quoted comment indicates to us that
race did play a role in Mr. Rebert's decisions regarding
peremptory challenges.
The facially race-based nature of Mr. Rebert's comments
requires us to conclude that the Commonwealth has failed to meet
its burden of providing a race-neutral explanation for the
challenge of Ms. Ferguson.
IV.
Accordingly, the judgment of the district court will be
affirmed.
