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Finding that a Philadelphia homicide prosecutor improperly used 11 of his 12 peremptory strikes to exclude African-Americans from the jury in a 1986 murder trial, a federal appeals court has overturned a death sentence and ordered a new trial for an alleged heroin dealer charged in the slaying of a 17-year-old boy who was strangled and shot over a drug deal dispute. In Holloway v. Horn, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals found that former Assistant District Attorney Drew Barth exhibited a “pattern” of using his peremptory strikes on black jurors, and that Barth gave an “evasive” response when a defense lawyer accused him of racially motivated strikes. The court also found that Barth’s remarks about the final three strikes he exercised in Arnold Holloway’s trial proved that his motive was not “race neutral,” and that one of his explanations for a strike was “plainly insupportable.” The court said there would be no point in holding an evidentiary hearing to allow Barth to explain his reasons now because “the prosecutor is psychiatrically disabled and has been for some time, and thus would be unable to testify meaningfully at a hearing.” Holloway’s trial lawyer, Barry Denker, is also unavailable, the court noted, because he entered the federal witness protection program soon after Holloway’s trial due to his own convictions on charges of bribing Philadelphia judges and has since died. The trial judge, Albert F. Sabo, is also now dead, the court noted. “It seems unlikely at this stage some 17 years after the trial that the prosecutor, even were he not disabled, could accurately recall his reasons for the strikes or provide meaningful elaboration upon the reasons that he placed on the voir dire record. Furthermore, given the unavailability of the relevant participants, there would be no benefit to a hearing at this point,” Senior 3rd Circuit Judge Robert E. Cowen wrote. Significantly, Cowen also found that the Pennsylvania Supreme Court had improperly dodged the Batson issue in Holloway’s case by applying Pennsylvania’s so-called “ Spence Rule.” The Spence Rule, which takes its name from the Pennsylvania Supreme Court’s 1993 decision in Commonwealth v. Spence, requires a defendant raising a Batson challenge to identify the race of all potential jurors removed by the prosecution, the race of all the jurors who served and the race of jurors acceptable to the prosecutors but struck by the defense. Now the 3rd Circuit has ruled that the Spence Rule improperly raises the bar in a Batson challenge by requiring more than the U.S. Supreme Court requires to establish a prima facie claim of race discrimination in peremptory strikes. “Application of the Spence Rule is at odds with Batson‘s first step because it places a burden upon the defendant to make a record of largely irrelevant information in order to raise an inference that the prosecutor excluded members of the venire on account of race,” Cowen wrote. “The Spence rule runs contrary to federal law insofar as it prevents a court from shifting the burden to the prosecutor upon a defendant’s showing, based on the factors required by Batson, that discrimination is at work. In that the Spence rule provided a justification for refusing to reach the merits of Holloway’s prima facie case, the Pennsylvania Supreme Court engaged in an unreasonable application of the clearly established Batson standard,” Cowen wrote in an opinion joined by 3rd Circuit Judges Dolores K. Sloviter and Theodore A. McKee. Cowen found that Holloway’s trial lawyer had lodged a valid Batson challenge during the trial and that, despite his appellate lawyer’s failure to raise the issue, Holloway himself had submitted a supplemental pro se brief that raised it. Since the Pennsylvania Supreme Court at the time had a practice of accepting such pro se supplemental briefs, Cowen found that Holloway had effectively raised it in his state appeals and therefore had the right to raise it in his federal habeas corpus petition. As a result, Cowen found that U.S. District Judge Franklin S. Van Antwerpen erred when he ruled that Holloway had waived his right to pursue the Batson claim by not raising it in his direct appeal. In a second round of appeals in the state courts, Cowen found that the Pennsylvania Supreme Court improperly rejected Holloway’s Batson claim on the grounds that Holloway had failed to comply with the Spence Rule. In Spence, the state Supreme Court held that “where an appellant fails to make a record for review of a Batson challenge, this court is unable to consider a claim that the trial court failed to find a prima facie case under Batson.” Applying the Spence Rule in Holloway’s case, the justices said that since the record lacked evidence of the race of all jurors — those in the pool, those struck by each side, and those who were seated — it was “impossible to determine if [Holloway]‘s claim has arguable merit.” But Cowen found that the Spence Rule is flawed because it alters Batson‘s three-part burden-shifting process. In Batson, the U.S. Supreme Court outlined the process for challenging a peremptory strike, saying: “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Cowen said “the Batson standard for assessing a prima facie showing is fluid, mainly because it places great confidence in the ability of trial judges to assess whether discrimination is at work based on the evidence at hand.” The defendant’s burden at the initial stage, Cowen said, “is to show merely that jurors of his race have been struck and that the strikes are indicative of an improper motive.” That burden is met, Cowen said, “if there is a pattern of strikes or if the prosecutor’s questions and statements during voir dire support an inference of discriminatory purpose.” The Spence Rule, Cowen said, improperly alters the first stage of a Batson challenge. “Notably absent from the Batson discussion of the prima facie case is any call for trial judges to seek the type of statistical accounting required by the Spence Rule — nor do we see how such an accounting fits within Batson‘s first step,” Cowen wrote. Turning to the merits of Holloway’s Batson claim, Cowen found that he had not only established a prima facie case, but had evidence that proved a violation. “The most striking factor in this case is the prosecutor’s pattern of strikes. Holloway moved for a mistrial after the prosecutor had used seven of eight peremptory strikes against African-Americans; the commonwealth ultimately used 11 of 12 strikes in that manner,” Cowen wrote. “The pattern here was certainly strong enough to suggest an intention of keeping blacks off the jury,” Cowen wrote. At trial, Barth had argued that his use of one peremptory strike to exclude a white woman showed that he was not motivated by race. Cowen disagreed, saying “a prosecutor cannot undermine a pattern of strikes that appears racially motivated by merely pointing to a lone juror of a different race whom he also found objectionable. A prosecutor also cannot rebut the defendant’s case merely by denying that he had a discriminatory motive or affirming his good faith in making individual selections.” After Holloway’s first motion for a mistrial was rejected, Cowen said, his lawyer noted each peremptory challenge exercised against a black juror and Barth offered reasons for three of those four strikes. Cowen found that Barth’s explanations were lacking. “Although we are troubled by the lack of race-neutrality in each of the prosecutor’s explanations, and perhaps more troubled by the lack of any explanation at all for eight of his 11 strikes, the explanation given as to venireperson John Hackley, Sr., was plainly insupportable under Batson and warrants relief,” Cowen wrote. Barth had explained that he struck Hackley on the ground that Hackley “is a black juror, black male juror approximately the same age as the defendant.” Cowen concluded that “the prosecutor cited Hackley’s race, age, and gender as the reasons for the strike.” Since race was “obviously” an impermissible reason, Cowen said, “we will assume that the prosecutor referred to Hackley’s race merely as a concession that Hackley was black so that his race would be clear as a matter of record. Thus, we focus on the prosecutor’s stated reasons of age and gender.” Reviewing the record, Cowen found that Barth’s explanation did not hold up. Hackley was nine years younger than Holloway, Cowen noted, and Barth had accepted three white jurors approximately the same age as Holloway, two of whom were males. He also chose not to exercise a peremptory strike against four other white jurors of approximately the same age who ultimately did not serve on the jury. As a result, Cowen said, “we find nothing in the prosecutor’s explanation of the Hackley strike, or in the record as a whole, to indicate that he harbored anything but a discriminatory intent to remove Hackley because of his race.”

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