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Eighteen years after the U.S. Supreme Court prohibited race-motivated peremptory strikes of jurors with its decision in Batson v. Kentucky, the lower federal courts and state courts are still struggling to apply it. And as a federal appeals court decision this week in Pennsylvania death row inmate Donald Hardcastle’s case illustrates, the courts are finding it especially difficult in appeals from pre- Batson trials where lawyers were not yet on notice about how to make a proper Batson record. Hardcastle, who was convicted and sentenced to die for the stabbing and torching murders of a West Philadelphia couple in 1982, claims that the prosecutor improperly used 12 of her 14 peremptory strikes to keep blacks off the jury. Since Batson had not yet been decided at the time of trial, the defense lawyer and prosecutor did not make the sort of record that is routinely made nowadays — a formal Batson challenge, followed by an immediate explanation from the prosecutor of any “race-neutral” reason for striking the juror, and a ruling by the trial judge. When Hardcastle’s case went before the Pennsylvania Supreme Court, the justices decided to fill the evidentiary void by combing the record themselves to find the prosecutor’s potential race-neutral explanations. But a federal judge ruled in 2001 that the Pennsylvania Supreme Court’s analysis was seriously flawed since the explanation must always come from the prosecutor herself. “ 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,” U.S. District Judge John R. Padova wrote in Hardcastle v. Horn. 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. As a result, Padova concluded that Hardcastle is entitled to a new trial. Now the 3rd U.S. Circuit Court of Appeals has handed down a ruling that includes significant victories for both sides — and finds fault in both the state Supreme Court’s decision and in Padova’s. Although the unanimous three-judge panel found that the state Supreme Court’s decision was faulty, it also found that Padova should have conducted an evidentiary hearing to allow the prosecutor to offer race-neutral reasons for the strikes. Siding with Hardcastle, the court agreed that the Pennsylvania Supreme Court’s analysis of his Batson claim was flawed in several ways. Although the Pennsylvania justices articulated potentially valid reasons for striking 10 of the 12 blacks, the reasons they offered for striking the final two jurors were simply not good enough, the appeals panel concluded. “The Pennsylvania Supreme Court’s assertion that the striking of venirepersons 11 and 12 was race-neutral simply because the prosecutor had an opportunity to observe them during voir dire is inadequate on its face,” 3rd Circuit Judge Jane R. Roth wrote. “This explanation amounts to nothing more than a statement that the prosecutor acted on intuition and with the absence of discriminatory intent. We have repeatedly rejected such vague and general claims in the past,” Roth wrote in an opinion joined by Chief 3rd Circuit Judge Anthony J. Scirica and Circuit Judge Richard L. Nygaard. Roth criticized the state Supreme Court for failing to follow Batson‘s three-step analysis, which calls for the challenger to make out a prima facie case, followed by an opportunity for the striking lawyer to offer a race-neutral explanation, and finally a shifting of the burden back to the challenger to allow an attack on the proffered explanation. “To say, as the Pennsylvania Supreme Court did, that a prosecutor’s step two burden may be satisfied based solely upon her opportunity to observe the jurors during voir dire creates an exception which threatens to swallow the rule,” Roth wrote. “The same could be said regarding almost any peremptory strike, and the acceptance of the explanation proffered by the Pennsylvania Supreme Court for the striking of Venirepersons 11 and 12 would render step two meaningless, as any prosecutor could bypass it by briefly questioning and observing the prospective juror prior to exercising the strike,” Roth wrote. But Roth also sided with the Philadelphia district attorney’s office in holding that Padova should have held an evidentiary hearing to allow the original prosecutor, Judith Rubino, to offer an explanation for her reasons for striking the 12 black jurors. Roth said that while she agreed with Padova’s remark that it would be difficult after so many years for a prosecutor to reconstruct the bases for the challenged strikes, “we cannot agree with [the lower court's] conclusion that � the Commonwealth is not entitled to attempt to do so.” A hearing is required, Roth said, because “the Commonwealth has never been provided with either a state or federal forum in which to present evidence in defense of its actions in this case.” Roth noted that Rubino made an offer to state the bases for her peremptory strikes on the record immediately following voir dire and later requested some form of hearing on the issue. In the opening paragraphs of her analysis, Roth said, she recognized that a Batson analysis in a case where the trial was conducted pre- Batson presents “unique evidentiary problems” for reviewing courts. But she said, “We do not believe the weight of this burden should be borne solely by the Commonwealth.” In the context of a pre- Batson trial, Roth said, it would be wrong to fault a defense lawyer for failing to request an evidentiary hearing following voir dire. Nonetheless, she said, “it is equally unfair to require the Commonwealth to retry Hardcastle without first being provided with the opportunity to defend its conduct in the prior trial.” Since the Batson decision emphasized the “subjective intent of the prosecutor,” Roth said, “we find it difficult to imagine a situation in which it would be appropriate to take the extraordinary step of granting habeas corpus relief without first providing the state with a hearing at which it could offer evidence in support of the challenged strikes if, as in this case, it desires to do so.” Hardcastle’s lawyer, Robert B. Dunham of the Defender Association of Philadelphia’s Federal Capital Habeas Corpus Unit, said he was disappointed in the ruling because he believed that an evidentiary hearing was unnecessary since Rubino conceded in a hearing just four months after the trial that she was unable to offer race-neutral explanations for her strikes. Assistant District Attorney Thomas W. Dolgenos said he, too, was disappointed that the 3rd Circuit did not uphold the state Supreme Court’s decision in Hardcastle’s case. But Dolgenos said that he was pleased that the court ordered an evidentiary hearing and that he looks forward to the chance to present proof that Rubino’s strikes were all legally valid. Dunham said that he, too, looks forward to such a hearing since Hardcastle will be allowed to present evidence of a “pattern and practice” of racially motivated jury strikes by the district attorney’s office at the time of Hardcastle’s trial.

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