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April 19, 2004.


The opinion of the court was delivered by: JOHN PADOVA, District Judge


Petitioner Zachary Wilson has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, and alleges that the prosecutor in his case engaged in intentional racial discrimination during jury selection, in violation of the Fourteenth Amendment to the United States Constitution. For the reasons that follow, the Court will grant Petitioner a Writ of Habeas Corpus.


  Petitioner was convicted by a jury in the Philadelphia Court of Common Pleas on May 16, 1984, for the February 1, 1982 murder of David Smith following a dispute over a game of craps. Petitioner was sentenced to life imprisonment for this crime. On November 17, 1987, the Superior Court of Pennsylvania affirmed Petitioner's conviction. Petitioner did not seek allocatur in the Supreme Court of Pennsylvania. On January 4, 1988, Petitioner filed a pro se petition for relief pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq., and appointed counsel subsequently filed an amended petition. This PCRA petition did not assert any claim that the prosecutor had discriminated on the basis of race in the selection of the jury used in Petitioner's trial in violation of Batson v. Kentucky, 476 U.S. 79 (1986), or Swain v. Alabama, 380 U.S. 202 (1965). On May 30, 1994, the PCRA Court denied the petition, and on November 13, 1995, the Superior Court of Pennsylvania ("Superior Court") upheld the denial. Commonwealth v. Wilson, 536 A.2d 830 (Pa. Super. 1987). On May 24, 1996, the Supreme Court of Pennsylvania denied Wilson's request for allocatur.

  On June 2, 1997, Wilson filed a second PCRA petition alleging for the first time a claim under Batson and Swain on the basis of a videotaped lecture delivered by Jack McMahon, the prosecutor in Petitioner's trial (The "McMahon Tape"). (See Hearing Stip. Ex. 1.) This lecture was given sometime in 1986, two years after Petitioner's conviction, but was not released to the public until late March or early April of 1997. (See Hearing Stip. ¶ 1.) On February 10, 1999, the PCRA Court denied Petitioner's second PCRA petition, reasoning that Petitioner's claim had been waived pursuant to 42 Pa. C.S.A. 9544(b), which states that a claim is waived if the petitioner could have raised the claim at trial or at an earlier point in the appeals process but failed to do so. Commonwealth v. Wilson, No. 2914, at p. 5 (December Term, 1983). On July 31, 2000, the Superior Court affirmed the denial, reasoning that Petitioner's Batson claim had been waived pursuant to 42 Pa. C.S.A. § 9544(b). Commonwealth v. Wilson, No. 783 EDA 1999 (Pa. Super Ct. Jul. 31, 2000). On March 22, 2001, the Supreme Court of Pennsylvania denied Petitioner's request for allocatur. Commonwealth v. Wilson, 775 A.2d 806 (Pa. 2001). Thus, no Pennsylvania state court has determined the merits of Petitioner's Batson claim.

  Subsequent to his conviction in the instant matter, Petitioner was convicted and sentenced to death for an unrelated homicide. Commonwealth v. Wilson, 649 A.2d 435 (Pa. 1995). Petitioner is currently on death row at the State Correctional Institution at Graterford ("Graterford Prison") awaiting execution. According to Petitioner, his conviction in the instant case was presented in his capital case as an aggravating circumstance in determining his eligibility for the death penalty. (Habeas Pet. at 4, n.2).

  On January 23, 2002, Petitioner filed a counseled petition for habeas corpus in this Court, asserting racially biased jury selection under Batson and Swain. In an opinion dated May 9, 2003, this Court held that Petitioner's claim of racially discriminatory jury selection was neither time barred nor procedurally defaulted, and ordered that an evidentiary hearing be held on the merits of Petitioner's claim. See Wilson v. Beard, Civ. A. No. 02-374, 2003 U.S. Dist. Lexis 9737 (E.D. Pa. May 8, 2003). On September 29, 2003, this Court held a hearing on the merits of Petitioner's claim. At the hearing, Petitioner entered the McMahon Tape into evidence. In addition, the parties stipulated at the hearing that eight of the sixteen peremptory strikes exercised by Jack McMahon at Petitioner's trial were exercised against African-Americans. (Hearing Stip Ex. 4.) The parties also stipulated that the jury at Petitioner's trial consisted of nine whites and two blacks (Hearing Stip Ex. 3.) The parties have further stipulated that the race of the second alternate juror was white. (Id.) The race of one of the jurors who sat on Petitioner's jury, as well as the race of the first alternate juror, have not been stipulated to and are apparently unknown. (Id.) Petitioner has also submitted evidence which he asserts establishes that four of the remaining eight jurors against whom Mr. McMahon exercised peremptory strikes were African-American. Upon review of this evidence, the Court finds as fact that a total of nine jurors against whom Mr. McMahon exercised peremptory strikes were African-American.*fn1 Unfortunately, it is not disputed that, with one small exception,*fn2 the entire transcript and the court reporter's tapes of the voir dire proceedings at Petitioner's trial have been lost and are currently unavailable. (Hearing Stip ¶ 6.) At the hearing, Mr. McMahon testified that, because of the passage of nearly twenty years since the time of trial, with one exception, he had "no idea" why he exercised peremptory strikes against these potential jurors. (9/23/03 N.T. at 43-49.)

 II. STANDARD OF REVIEW The state court in this case never addressed the merits of Petitioner's Batson claim, because it found that the claim was procedurally defaulted pursuant to state law. Accordingly, the Court makes a de novo determination of this claim. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) ("It follows that when, although properly preserved by the defendant, the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA. . . do not apply. . . [and] the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact. . . ."). However, any factual determinations of the state court that would be relevant to Petitioner's Batson claim "are still presumed to be correct, rebuttable only upon a showing of clear and convincing evidence." Id.


  In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court recognized that the practice of exercising peremptory challenges provides an opportunity for prosecutors so inclined to engage in discrimination. Accordingly, the Court in Batson established a three part burden shifting procedure to be used in determining whether a prosecutor had engaged in racially discriminatory jury selection practices. Under Batson, "Once the defendant makes a prima facie showing of racial discrimination (step one), the prosecution must articulate a race-neutral explanation for its use of peremptory challenges (step two). If it does so, the trial court must determine whether the defendant has established purposeful discrimination (step three)." Riley v. Taylor, 277 F.3d 261, 275 (3d Cir. 2001)(citations omitted).

  A. Step 1 — Prima Facie Case

  Under Batson, "A court should consider all relevant circumstances in assessing whether a prima facie showing of discrimination has been made." Holloway v. Horn, 355 F.3d 707, 722 (3d Cir. 2004). The United States Court of Appeals for the Third Circuit ("Third Circuit") "has identified five factors that are generally relevant in this inquiry: 1) the number of racial group members in the panel; 2) the nature of the crime; 3) the race of the defendant; 4) a pattern of strikes against racial group members; and 5) the questions and statements during the voir dire." Id. (quoting United States v. demons, 843 F.2d 741, 748 (3d Cir. 1988)). In Holloway, the Third Circuit specifically rejected a rule, which had been utilized in Pennsylvania state courts, which required a Petitioner to make a record identifying the race of the venire persons stricken by the prosecution, as well as the racial composition of the final jury selected, in order to establish a prima facie case of discrimination under Batson. The Holloway court reasoned that "The defendant's burden at the initial [prima facie] stage is to show merely that jurors of his race have been struck and that the strikes are indicative of an improper motive." Id. at 728. The court also noted that "a defendant's Batson objection need not always be based upon a pattern of strikes; it can be based, for example, on a single strike accompanied by a showing that the prosecutor's statements and questions to the juror (or to prior jurors) support an inference of discrimination." Id.

  While the analysis in this case is admittedly hampered by the fact that we do not have a transcript of the voir dire proceedings, there is still more than sufficient circumstantial evidence of Mr. McMahon's use of racial discrimination in the selection of Petitioner's jury to establish a prima facie case under Batson. First, in the McMahon Tape, Mr. McMahon describes in great detail his strategy of systematically excluding certain types of black jurors in cases that he tried. Specifically, Mr. McMahon describes in the Tape his practice of striking all African-American potential jurors from low income neighborhoods, striking young African-American women, and striking older African-American women in cases involving young black male defendants.*fn3 (McMahon Tape at 47, 56-57.) Mr. McMahon, realizing that these practices were in direct contravention of Batson, also described techniques which could be utilized to avoid detection, such as questioning black jurors more carefully in order to ensure that one had a non-discriminatory reason for striking the juror if an objection were made. (McMahon Tape at 70.) Many of the practices described in the McMahon Tape are therefore blatantly discriminatory on their face, as the Pennsylvania Supreme Court, which previously had occasion to consider the contents of the Tape, has found. See Commonwealth v. Basemore, 744 A.2d 717, 731 (Pa. 2000) ("we condemn in the strongest terms the practices described in the transcript [of the McMahon Tape], which flout constitutional principles in a highly flagrant manner.") This Court similarly condemns the discriminatory jury selection practices described in the McMahon Tape.

  In the Tape, Mr. McMahon clearly states that he always adhered to the same strategy when picking a jury, no matter what the circumstances. (See McMahon Tape at 3, 62.) Specifically, Mr. McMahon states in the Tape that "I think you pick the same jury. I don't care if it's a black, white, Puerto Rican, Chinese, or what. You pick the same jury." (Id. at 62.) Mr. McMahon further stated that "And that's all I can tell you. . . is to play by certain rules and don't bend them and don't change them." (Id. at 3.) Indeed, in Basemore, the Pennsylvania Supreme Court, in considering a similar case brought by an African-American defendant who had been tried by Mr. McMahon, found that "there can be no question that the practices described in the transcript [of the McMahon Tape] support an inference of discrimination on the part of any proponent." ...

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