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The now-infamous videotape of a training session led by former homicide prosecutor Jack McMahon in which he coached other prosecutors in techniques to keep blacks off juries continues to haunt the Philadelphia district attorney’s office. A Philadelphia common pleas judge Wednesday overturned a death sentence and ordered a new trial for a man who was prosecuted by McMahon on murder and robbery charges in 1988. “This court is convinced that the trial prosecutor in this case engaged in a pattern of discrimination during voir dire,” Judge David N. Savitt wrote in Commonwealth v. Basemore. McMahon’s videotape was made one year after the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky, in which the high court forbade racially motivated peremptory strikes. The trial of William Basemore took place one year after the video was made. In 1997, the video went public during McMahon’s bid to unseat incumbent District Attorney Lynne Abraham. Some of McMahon’s remarks in the tape were especially damning: “In my experience, black women, young black women, are especially bad. There’s an antagonism. I guess maybe because they’re downtrodden in two respects — they’ve got two minorities: They’re women and they’re blacks, so they’re downtrodden in two areas. And they somehow want to take it out on somebody, and you don’t want it to be you,” McMahon said on the tape. Later in the tape, McMahon cautioned the prosecutors to be ready for a Batson challenge. “The best way to avoid any problems is to protect yourself. And my advice would be in that situation when you do have a black jury, you question them at length. And on this little sheet that you have, mark something down that you can articulate at a later time. … You may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you’re striking them, not for race,” McMahon said. In Basemore’s trial, McMahon used 19 peremptory strikes, all against blacks — 14 women and five men. The jury that ultimately heard the case had only two blacks — one man and one woman. Basemore, who was 23 years old at the time of the trial, was a former kitchen worker at Philadelphia’s Riverfront Restaurant and Dinner Theater. He was convicted of murdering George L. Weiss, 68, a security guard at the complex, by using a makeshift spear. McMahon told the jury that Basemore took the spear to the complex on Dec. 23, 1986, specifically to kill Weiss, who Basemore knew would be alone in the early morning. Weiss was stabbed eight times in the chest with the spear and then was stabbed once in the throat with a knife, “to finish him off,” McMahon said. About $2,300 was stolen from the safe, along with gift certificates and coins. The Pennsylvania Supreme Court upheld the conviction and death sentence of Basemore in 1990. Basemore filed for post-conviction relief in 1995 but lost the first round when a common pleas judge denied the petition. But by the time his PCRA petition was before the state supreme court, the McMahon video was public knowledge. In July 1999, the state supreme court ordered new hearings, finding that while the evidence against Basemore was “overwhelming,” the McMahon videotape was nonetheless valid circumstantial evidence that could be used to support a Batson claim. Now Savitt has ruled that Basemore is entitled to a new trial because McMahon’s explanations for his peremptory strikes were “insufficient.” Savitt concluded that “the jury selection procedure manifested a conscious pattern of discrimination.” Under Batson, Savitt said, the court can draw an “inference of discrimination” from a “discernible pattern” in a prosecutor’s use of peremptory challenges against jurors of a particular race or ethnicity. After hearings in which McMahon testified, Savitt found that “the record indicates a conscious strategy to exclude African-American jurors.” While some of McMahon’s explanations could arguably be called “race-neutral,” Savitt found that others were lacking and some of the peremptory challenges were unexplained. McMahon testified that he struck blacks because of their low level of education. But Savitt found that he had accepted two white jurors with backgrounds similar to those of the blacks he excluded. Likewise, Savitt said McMahon claimed that he struck some blacks because they were residing with their parents but couldn’t explain why he had accepted white jurors who were also still living in their childhood homes. And in the same vein, Savitt rejected McMahon’s claim that he rejected blacks whose family members were victims of crimes for which no one was arrested, because he had accepted white jurors with similar circumstances. Basemore was represented by attorney Robert Dunham, the director of training in the capital habeas corpus unit of the Philadelphia Federal Defenders Office. In a statement issued late Wednesday, the district attorney’s office said it was reviewing Savitt’s decision to determine whether an appeal is appropriate. But the office was also quick to distance itself from the McMahon tape, saying “the videotape mentioned in the opinion was made prior to the time that Lynne Abraham became district attorney and has never been used for training by her office. She rejects the contents of the tape as violative of the law and contrary to the policy of her office.”

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