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The now-infamous videotape of a training session led by former Philadelphia homicide prosecutor Jack McMahon — in which he discussed techniques prosecutors should use to keep African-Americans off juries — has resulted in yet another court ruling that tosses out a murder conviction. This time, the author of the opinion is 3rd Circuit Judge Edward R. Becker, who faulted McMahon for engaging in improper jury selection tactics that violated the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky. Becker found that the training video was “compelling evidence” that McMahon “regularly acted with discriminatory animus toward African-American jurors.” In the case of Zachary Wilson — who was convicted of first-degree murder and sentenced to life in a 1984 case prosecuted by McMahon — Becker found there was ample evidence that McMahon improperly struck numerous African-Americans from the jury. “There can be no doubt that if McMahon practiced in Wilson’s trial what he preached in the tape, he violated Batson,” Becker wrote in an opinion joined by 3rd Circuit Chief Judge Anthony J. Scirica and Judge Jane R. Roth. The ruling upholds an April 2004 decision by U.S. District Judge John R. Padova that granted Wilson a new trial. But for Wilson and his lawyer — Assistant Federal Defender Michael Wiseman — the victory is just half the battle in a larger war because Wilson was later convicted of a second murder and sentenced to death in that case. Padova is also presiding over Wilson’s appeal in the death penalty case, but has not yet issued any rulings on whether that trial was a fair one. But Thursday’s ruling could add new issues to the death penalty case because the jury found that Wilson’s prior murder conviction was an “aggravating factor” that supported his death sentence. Becker’s 29-page opinion in Wilson v. Beard is loaded with quotes from McMahon’s training video, including one in which McMahon said: “Let’s face it … the blacks from the low-income areas are less likely to convict… . There is a resentment for law enforcement, there’s a resentment for authority and, as a result, you don’t want those people on your jury. And it may appear as if you’re being racist or whatnot, but, again, you are just being realistic. You’re just trying to win the case.” At one point in the video — which was made a year after the Batson decision was handed down — McMahon advised prosecutors on how to be ready to respond to a Batson challenge. “The best way to avoid any problems with it is to protect yourself,” McMahon said. “And my advice would be … 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 if something happens.” Prosecutors argued that Padova’s ruling should be reversed because Wilson’s federal habeas corpus petition was filed too late. Assistant District Attorney Thomas Dolgenos argued that Wilson failed to file his petition within one year of the date on which the McMahon tape first received coverage on the local news. Dolgenos argued that Wilson had access to television in prison and therefore could have discovered the existence of the videotape as early as April 1, 1997 — the day after it was released by District Attorney Lynne Abraham. As a result, Dolgenos argued, Wilson’s petition was filed four days too late. Padova had rejected that argument, saying the prosecutors couldn’t show that Wilson had “failed to exercise due diligence.” Instead, Padova found that “it would not be logical or fair to read the concept of due diligence as imposing upon a criminal defendant the duty of continuously monitoring the local news for a period of 12 or more years in the hope of possibly learning facts which could be helpful to his case.” Becker agreed, saying “no person in Wilson’s position would reasonably expect that the local news would be a source of information relevant to his case, given that his conviction had occurred 13 years ago and his final appeal had been rejected by the Supreme Court the previous year.” Turning to the merits of Wilson’s Batson claim, Becker found that Wilson’s jury consisted of nine whites, two blacks and one juror of unknown race. Padova found that McMahon used at least nine of his 16 peremptory challenges against African-Americans. He concluded that Wilson had proven his Batson claim because the evidence showed that McMahon had discriminated on the basis of race for “at least one” of the jurors he struck. Padova noted that McMahon struck at least six African-American women and found that his comments in the video showed that McMahon considered “young” and “older” black women to be unfriendly to the prosecution. Dolgenos argued that the techniques McMahon discussed in the video could have been developed after Wilson’s trial. Becker flatly rejected that argument, saying “while the tape was made about two years after Wilson was convicted, McMahon leaves no doubt that he had developed the techniques he advocates over the course of his career.” Since McMahon had worked in the District Attorney’s Office for six years prior to Wilson’s trial, Becker found that “it simply defies logic to suggest that all of the techniques which he so forcefully advocates in the tape suddenly came to him during the two years between Wilson’s trial and the training session at which the tape was made.” As a result, Becker concluded that Padova was “justified in concluding that McMahon almost certainly followed the techniques he advocates in the tape during Wilson’s trial. Indeed, given that McMahon used at least nine of his peremptory strikes on African-Americans, we think it abundantly clear that McMahon made full use of the techniques he discusses in the tape in Wilson’s trial.” Becker also found that McMahon’s testimony in a hearing before Padova supported Wilson’s claim because McMahon “equivocated” when asked directly if he had engaged in racially discriminatory jury selection. According to the transcript, Padova asked McMahon if race had ever been a factor in his decisions about whether to strike a juror. “That’s a tough question, your honor,” McMahon answered. “I can’t say that it — because sometimes they’re intertwined. I would say that — was it ever a factor? In some ways, I guess, yes. In some ways I would think, in certain situations, maybe, but only because of its correlation to another factor, not because of the color of their skin. It was really other things, and it’s because of other issues that would be the reason for a peremptory strike. I don’t see race as being the reason.” Dolgenos could not be reached for comment on the ruling. Wiseman declined to comment, saying “the decision speaks for itself.”

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