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As Pennsylvania Superior Court Judge Michael T. Joyce sees it, whenever prosecutors illegally strike blacks from a jury, they have committed “egregious” prosecutorial misconduct that warrants a dismissal of all charges on double jeopardy grounds and not a new trial. But Joyce was the dissenter in Commonwealth v. Basemore, a decision handed down Friday in which the majority held that a Batson violation can be completely cured by awarding the defendant a new trial. “Nowhere in the approximately 20 years of Batson jurisprudence has there been any suggestion that a Batson violation so subverts the truth seeking process as to implicate double jeopardy concerns,” Judge Correale F. Stevens wrote in an opinion joined by Judge Joan Orie Melvin. The decision upholds the April 2003 first-degree murder conviction and life sentence of William Basemore, whose original conviction and death sentence in 1988 was overturned due to Batson violations by former homicide prosecutor Jack McMahon. In Basemore’s first 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, according to the opinion. Basemore, who was 23 years old at the time of the first trial, was a former kitchen worker at the Riverfront Restaurant and Dinner Theater. He was convicted of murdering George L. Weiss, a 68-year-old 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. Thirteen years later, Basemore won a new trial in the wake of the public disclosure of the now-infamous videotape training session led by McMahon in which he coached other prosecutors in techniques to keep blacks off juries. Some of McMahon’s remarks in the tape — which was made the year after Batson came down — 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 case, McMahon testified in 2001 about his reasons for 13 of the 14 strikes, but said he could not recall his reasons for the final strike. But a Philadelphia Common Pleas judge was unimpressed and concluded that McMahon’s strikes were motivated by race. “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. But Savitt later denied Basemore’s motion for dismissal of the charges on double jeopardy grounds. At the close of his retrial, he was convicted of first-degree murder, but was spared the death sentence when the jury could not reach a unanimous verdict in the penalty phase. On appeal, Basemore’s lawyer, Todd Edward Henry, argued that Savitt should have dismissed all charges because a Batson violation amounts to a deliberate attempt to deprive a criminal defendant of a fair trial. Henry urged the court to apply the reasoning of a pair of Pennsylvania Supreme Court decisions — the 1992 decision in Commonwealth v. Smith and the 1999 decision in Commonwealth v. Martorano. In those two cases, Henry argued, the high court held that intentional prosecutorial misconduct that deprives a defendant of a fair trial implicates the Double Jeopardy Clause and bars retrial. Stevens disagreed, saying “no state or federal court in any published or unpublished decision has ever held that a prosecutor’s Batson violation, no matter the circumstances, constitutes prosecutorial misconduct of such a degree as to implicate double jeopardy principles.” The issue in Smith and Martorano was different, Stevens found, since the prosecutorial misconduct in both of those cases was designed to “demean or subvert the truth seeking process.” In Smith, Stevens noted, the courts found that prosecutors withheld exculpatory evidence; in Martorano, the prosecutor was faulted for blatantly disregarding evidentiary rulings and repeatedly alluding to evidence the prosecutor knew did not exist. The Martorano decision extended Smith and showed that its holding could not be limited to cases involving the withholding of exculpatory evidence, but Stevens found that a Batson violation does not qualify as the same sort of prosecutorial misconduct. Although a Batson violation is intentional misconduct that violates constitutional rights, Stevens found there was “no persuasive legal support for [Basemore's] claim that a Batson violation, which is not addressed until after jeopardy attaches, without more, constitutes the type of prosecutorial misconduct that Smith [and] Martorano … were designed to remedy.” Stevens said he didn’t want to minimize the importance or disregard the severity of a Batson violation, but that “we believe there are legitimate distinctions to be made between a prosecutor’s misconduct in concealing exculpatory evidence or completely disrupting the trial process and a prosecutor’s attempt to assemble a jury by relying on outworn and unacceptable stereotypes.” In Smith and Martorano, Stevens said, the misconduct undermined the fairness of the trial so that the jury was “unable to reach a fair verdict.” The same cannot be said about Basemore’s trial, Stevens said, unless the courts “accept the stereotypes.” JOYCE DISSENTS But in a spirited dissent, Joyce argued that the intentional nature of a successful Batson violation that results in a conviction by a racially skewed jury puts it squarely in the Smith and Martorano line of cases. “Because of the very nature of a Batson violation, more need not be provided to establish egregious prosecutorial misconduct to warrant application of the Double Jeopardy Clause and bar retrial,” Joyce wrote. Batson violations “impact upon the fundamental fairness of a trial,” Joyce said, because “racial discrimination in jury selection is more than trial error; it results in structural defect.” Under the Smith rule, Joyce said, double jeopardy is implicated if the prosecutorial misconduct is “deliberate, undertaken in bad faith and with a specific intent to deny the defendant a fair trial.” McMahon’s Batson violation satisfied that test, Joyce said, because he “engaged in a systematic and discriminatory method of excluding potential jurors because of their race. … His intentions were not to seek a fair and impartial jury, but one that was most likely to do what he wanted them to do.” As a result, Joyce concluded that McMahon’s goal was to deny Basemore his constitutional rights to equal protection and a fair trial. “Selecting a jury in a discriminatory manner corrupts the very principle upon which criminal jurisprudence is based — that an accused is innocent until found guilty by a fair and impartial jury of his/her peers,” Joyce wrote. “Thus, by its very nature, any Batson violation will be so egregious, will flout constitutional principles so flagrantly, it neatly falls into the definition of prosecutorial misconduct and warrants the protection of the Double Jeopardy Clause,” Joyce wrote. But in his final paragraph, Joyce also hinted that he sees difficulty in extending Smith and Martorano to cover all Batson violations. “I do not believe that such a black-and-white application of these principles ultimately serves justice,” Joyce wrote, noting that the proof of Basemore’s guilt was overwhelming. Joyce closed his dissent by urging the Pennsylvania Supreme Court to hear the case “and provide its guidance.”

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