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Overturning a death penalty and ordering a new trial in the 1982 stabbing and torching murders of a West Philadelphia couple, a federal judge has ruled that the Pennsylvania Supreme Court botched its legal analysis when it rejected the defendant’s argument that the prosecutor had improperly used 12 of her 14 peremptory strikes to keep blacks off the jury. U.S. District Judge John R. Padova of the Eastern District of Pennsylvania found that the state Supreme Court’s decision in Donald Hardcastle’s case was premised on a misunderstanding of the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky because the Pennsylvania justices took it upon themselves to search the record to supply possible “race neutral” reasons for striking all but one black from the jury — even though the prosecutor herself said just six months after the trial that she couldn’t possibly remember her reasons. Padova found that the Pennsylvania justices also erred when they assumed that the prosecutor must have been motivated by the “demeanor” of two jurors for whom the high court couldn’t find any possible cause in the record. “ Batson places on the prosecutor the burden of producing a neutral explanation for the peremptory challenge, the credibility of which the court then weighs. … Here, the justifications for the prosecutor’s challenges were proffered by the court, not the prosecutor,” Padova wrote in Hardcastle v. Horn. “The method of analysis employed by the Pennsylvania Supreme Court is contrary to Batson because it exempts the prosecutor from satisfying the burden of production imposed by Batson. Thus, the state court, by sua sponte generating justifications for the prosecutor’s challenges, applied a rule of law that is contrary to that established by Batson.” In rejecting the justices’ decision that two black jurors must have been struck due to their demeanor, Padova wrote: “The record contains no evidence whatsoever about any juror’s demeanor or the prosecutor’s observations or impressions thereof. In the absence of any evidence relevant to demeanor, it is objectively unreasonable to derive any inference, positive or negative, about the challenged jurors’ demeanor or the prosecutor’s impressions of the jurors’ attitude.” Such “blatant speculation,” Padova said, is not enough to “rebut the inference of purposeful discrimination” that Hardcastle’s lawyers proved by showing that the prosecutor had used all but two of her strikes to keep blacks off the jury. As a result, Padova said, “the Pennsylvania Supreme Court’s findings that a neutral explanation existed and that petitioner’s prima facie case was rebutted with respect to those jurors is based on an unreasonable determination of the facts.” After combing the record himself, Padova concluded that Hardcastle’s lawyers had proven that Assistant District Attorney Judith Rubino “engaged in intentional discrimination with respect to six prospective African-American jurors.” Ironically, Padova’s ruling echoes the decision of a special three-judge panel of the Philadelphia Court of Common Pleas that called for a new trial soon after Hardcastle’s conviction due to what it perceived as racially motivated peremptory strikes. Since Batson had not yet been handed down, Hardcastle’s lawyer, F. Emmett Fitzpatrick, was forced to meet the much tougher standard of Swain v. Alabama, which required proof of a pattern of racially motivated jury striking in numerous cases. Rubino, in her oral argument before the three-judge Common Pleas panel, said Fitzpatrick couldn’t possibly meet the Swain test since the jury was not 100 percent white. But Judge Juanita Kidd Stout criticized Rubino’s logic, saying a “token” black on a jury was not enough to insulate the prosecutor from charges that she was racially motivated in exercising nearly all of her other strikes. Stout, who later made history as the first black woman to serve on the state Supreme Court, handed down an opinion in Hardcastle’s case that is now considered prophetic because it accurately predicted the central holding in Batson — that a defendant can win a new trial solely on the basis of the racially motivated strikes in his own case. But the Pennsylvania Superior Court overturned the decision in 1985 and reinstated Hardcastle’s conviction. The state Supreme Court at first took the case up but later dropped it, saying the appeal was “improvidently granted.” After Hardcastle was formally sentenced to death, he again appealed to the state Supreme Court. After his conviction was upheld, Hardcastle pursued a second round of appeals under the Post-Conviction Relief Act, losing at the trial court level in 1995 and garnering a second opinion from the state Supreme Court in 1998 that again condemned him to die. Padova’s 46-page opinion reviews both of the state Supreme Court opinions in Hardcastle’s case. Although Padova’s account of Hardcastle’s alleged crimes was just two sentences long, Assistant District Attorney Thomas Dolgenos offered a much more detailed account of the crime in his federal court brief. In the early morning of May 23, 1982, Joseph Gregg, 60, and his longtime companion, Ernestine Dennis, 57, each were stabbed multiple times at Gregg’s home in West Philadelphia. The house was then set on fire. At trial, eyewitnesses said they saw Hardcastle outside Gregg’s house. One witness said he was carrying a crowbar. After the fire was extinguished, investigators said they discovered that the door had been forced open and that the house was ransacked. In the second-floor bedroom, the charred bodies of Gregg and Dennis were discovered beneath badly burned clothing. Police recovered a 2-foot-long machete and an 18-inch kitchen knife. Gregg had suffered 33 stab wounds to his body and four defensive wounds in his left hand. Dennis had been stabbed 34 times. Rubino told the jury that Gregg ran a “speakeasy” in his home and that Hardcastle had murdered the couple for a box of liquor. Hardcastle told police that he was “high” on marijuana and beer on the night of the murder, and claimed that he had stolen the box of liquor from an unlocked car. But he insisted that he had “nothing to do with” the murders. In his federal court petition, Hardcastle’s lawyers – Assistant Federal Defenders Robert Brett Dunham and Michael Wiseman – raised a slew of issues. But Padova’s opinion focused on only one – the Batson issue. Since Hardcastle’s trial was held before Batson, his lawyer didn’t object at the time of each peremptory challenge. As a result, Padova found, “the trial court provided no opportunity for the prosecutor to place her reasons for striking the African-American jurors on the record.” Since there was no record of the prosecutor’s reasons for her strikes, Padova said, the Pennsylvania Supreme Court “canvassed the voir dire transcript to determine whether any of the 12 jurors stricken by the prosecution had provided information that could conceivably constitute a race-neutral reason for striking that juror.” The justices first found that the voir dire transcript contained “potential race-neutral reasons” to justify the prosecutor’s strikes of 10 of the excluded black jurors, Padova found. For the remaining two black jurors, Padova said, the justices concluded that the prosecutor could have based her challenge on her observations of their demeanor. The justices noted that Rubino hadn’t challenged two black jurors, including one who was struck by the defense. As a result, the justices said that Hardcastle hadn’t even made out a prima facie case under Batson. In the 1998 PCRA opinion, the justices revised their holding, saying their prior opinion had actually assumed that Hardcastle made out a prima facie case, but that the court ultimately decided he had not proven that the prosecutor used her strikes improperly. Padova flatly rejected the justices’ logic. “The Pennsylvania Supreme Court’s decision was contrary to Batson because the court confronted a situation that is factually indistinguishable from Batson but yet reached an opposite result,” Padova wrote. “In Batson, the trial court rejected the defendant’s timely objection without determining if the facts established a prima facie case of purposeful discrimination. The [U.S.] Supreme Court remanded the case for such a determination. The trial court in [Hardcastle's] case engaged in the same course of conduct, but the Pennsylvania Supreme Court failed to remand the case.” Padova said Batson requires that “if the facts establish a prima facie case and the prosecutor fails to come forward with a neutral explanation, the conviction must be reversed.” Rubino’s only statements of her reasons for the strikes were “general denials of racial bias” and remarks to the effect that she was unable to recall her reasons, Padova said. In a post-trial hearing, Rubino said: “How can I possibly now tell you why I challenged anybody? I don’t think that now, some six months after, I can tell you why I challenged somebody then.” She also said: “I’m not saying that the race of the venireman was the reason for those challenges.” Padova found that such responses were not enough. “Statements such as these were explicitly rejected by Batson as being insufficient to sustain the prosecutor’s burden of production,” Padova wrote. “Since the Batson court held these reasons to be insufficient as a matter of law and no other valid neutral reasons proffered by the prosecutor appear in the record, Batson required reversal of [Hardcastle's] conviction. The Pennsylvania Supreme Court failed to do so and thus reached a result directly contrary to Batson,” he wrote. And even if the justices’ method was not “contrary to” Batson, Padova found that “it at least constitutes an unreasonable application of Batson because the fact that certain information known about a juror could have supported a non-discriminatory challenge does not support any reasonable inference that the prosecutor actually relied on any of that information.” At oral argument, Dolgenos argued that the Pennsylvania Supreme Court was justified in taking the approach it did because Hardcastle’s case was tried before Batson. If the federal courts reject that approach, Dolgenos said, they would have to hold that whenever there is a “gap” in the record in a pre- Batson case — and there are many — that there is a “presumption” of a constitutional violation. But Padova pressed on with his criticism of the justices’ logic, asking Dolgenos whether he agreed that “inference on inference on inference becomes speculation, doesn’t it?” Dunham used statistics to make his case, saying Rubino struck 85.7 percent of blacks, but accepted more than 90 percent of whites. And since one of the white jurors she struck was Latino, he said, the true rate of accepting whites was more than 95 percent. Put another way, Dunham said, Rubino was 10 times more likely to take a white juror than to strike him and six times more likely to strike a black juror rather than take him.

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