Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 87-07439.
Sloviter and Mansmann, Circuit Judges, and Anne E. Thompson, District Judge.*fn*
In this appeal from the grant of a writ of habeas corpus, the Commonwealth of Pennsylvania contends that the petitioner, William Howard Harrison, is not entitled to habeas relief under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), which prohibits the prosecution's use of peremptory challenges to exclude individuals from serving as jurors on the basis of race. Because Harrison's appeal from the judgment of sentence was on direct review in the state court system at the time of the Batson decision, and because the prosecution was unable to articulate a racially neutral reason for its peremptory challenge of a black jury venireperson, we will affirm the decision of the district court. Harrison's cross-appeal is mooted by our decision in his favor in the government's appeal.*fn1
In September, 1982, the petitioner, William Howard Harrison, was tried and convicted of robbery and conspiracy. During the jury selection process, the prosecutor used six of his eight peremptory challenges to dismiss jury venirepersons from the jury panel. All six were black; Harrison is black. Harrison's trial counsel timely objected to the prosecutor's use of peremptory challenges to exclude all black venirepersons.
In April, 1986, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and held that the equal protection clause is violated when venirepersons are excluded from the jury on the basis of race. At that time, Harrison's direct appeal from his conviction was pending before the Pennsylvania Superior Court, which affirmed his conviction in May of 1986. The Pennsylvania Supreme Court denied allocatur in December, 1986.
On November 19, 1987, Harrison filed a petition for writ of habeas corpus, challenging his conviction and incarceration. He alleged that the prosecutor had impermissibly used race as a factor, when using his peremptory challenges, in order to exclude Blacks from the jury. The United States Magistrate held a hearing in October of 1988, to determine whether the prosecutor could provide clear, specific and racially neutral explanations for his peremptory challenges. The magistrate issued a Report and Recommendation concluding that the prosecutor was able to articulate racially neutral explanations for the dismissal of five of the six venirepersons, but was unable to explain the dismissal of the sixth.*fn2 Consequently, the magistrate recommended that the certificate of probable cause be issued and the writ granted.
The district court adopted the Report and Recommendation of the magistrate and granted the writ. The district court then ordered that the Commonwealth either retry the petitioner within 90 days or release him. The Commonwealth appealed from the grant of the writ.
Because Harrison's appeal from his conviction was on direct review in the Pennsylvania state court system at the time of the Supreme Court's decision in Batson, we must apply the new rule. Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987) (new rule for the conduct of criminal prosecutions is to be applied to all cases, state or federal, pending on direct review or not yet final). The district court's factual determinations, including issues of credibility, are entitled to great deference and are not to be overturned unless clearly erroneous. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). As to matters concerning questions of law, however, we have plenary review.
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the Supreme Court reaffirmed a principle decided over one hundred years earlier that "the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded." 476 U.S. at 85, citing Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1880). Moreover, the Court noted, racial discrimination in the selection of jurors not only harms the defendant but also harms the excluded juror and brings into question the fairness of the judicial system. Id. at 87.
To avoid the crippling burden of proof which has been placed on the defendant by some courts to establish the existence of a violation of the equal protection clause, the Court discerned the elements of a prima facie case from the many cases applying Strauder. 476 U.S. at 92-94. Thus, to ...