On Appeal From the United States District Court For the Middle District of Pennsylvania. (D.C. Civil Action No. 91-cv-00775).
Before: Stapleton and Greenberg, Circuit Judges, and Atkins,*fn* District Judge.
STAPLETON, Circuit Judge:
This habeas corpus 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.
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 foople, 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.*fn1
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 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. § 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, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (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. sponse 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."
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:
We 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.
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 ...