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Wilson v. Beard

October 13, 2005; as amended October 17, 2005


On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. No. 02-cv-0374). District Judge: Honorable John R. Padova.

The opinion of the court was delivered by: Becker, Circuit Judge


Argued April 11, 2005

Before: SCIRICA, Chief Judge, ROTH and BECKER, Circuit Judges


Jeffrey A. Beard and Donald T. Vaughn, Pennsylvania Corrections officials (hereinafter "the Commonwealth"), appeal from an order of the District Court granting Zachary Wilson a writ of habeas corpus and vacating his 1984 conviction for murder. The District Court found that Wilson was entitled to relief from his conviction under the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits the exclusion of potential jurors on account of their race. In reaching this conclusion, the District Court relied primarily on a widely publicized videotape in which the prosecutor in Wilson's case, former Assistant District Attorney Jack McMahon, discusses various techniques for jury selection. In the tape, McMahon repeatedly advises his audience to use peremptory strikes to keep certain categories of African-Americans from serving on criminal juries, in apparent violation of Batson.

On appeal, the Commonwealth raises three issues. First, it claims that Wilson's habeas petition was untimely under 28 U.S.C. § 2244(d)(1), because Wilson failed to file his petition within one year of the date on which the McMahon tape first received coverage on the local news. This date, the Commonwealth argues, was the date on which Wilson could have discovered the tape's existence "through the exercise of due diligence." Id. § 2244(d)(1)(D). Because we find that Wilson, who denies timely knowledge of the reports, did not fail to exercise reasonable diligence in not monitoring the local news thirteen years after his conviction, we reject this argument. Also on the timeliness issue, the Commonwealth argues that the District Court erred in applying Rules 6(a) and 6(e) of the Federal Rules of Civil Procedure to determine the limitations period for Wilson's habeas petition. We conclude that both rules apply to habeas petitions and that the District Court's application of them was not error.

Second, the Commonwealth argues that 28 U.S.C. § 2254(e)(2) precluded the District Court from holding a hearing on Wilson's Batson claim, and that the District Court therefore erred in granting Wilson such a hearing. Because we conclude that Wilson satisfied the requirements of that statute, we will reject this argument. Finally, the Commonwealth argues that the District Court improperly applied the Batson framework in concluding that Wilson was entitled to relief from his conviction. We find that the District Court's conclusion that McMahon engaged in intentional discrimination in jury selection in Wilson's trial is amply supported by the record and that the District Court did not err in its application of Batson. We will therefore affirm the order of the District Court.

I. Facts and Procedural History

Wilson was charged with first-degree murder and possessing an instrument of crime for the February 1, 1982, shooting of David Smith following a dispute over a game of craps. On May 16, 1984, a jury convicted Wilson on both charges. He was subsequently sentenced to life in prison. The Pennsylvania Superior Court affirmed the conviction, see Commonwealth v. Wilson, 536 A.2d 830 (Pa. Super. 1987), and Wilson did not seek review before the state Supreme Court. In 1988, he filed a pro se petition seeking collateral review of his conviction pursuant to the Pennsylvania Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. The PCRA Court denied Wilson's petition, and the Superior Court affirmed the denial. The State Supreme Court denied allocatur. See Commonwealth v. Wilson, 678 A.2d 365 (Pa. 1996).*fn1

In 1997, Jack McMahon, the Assistant District Attorney who prosecuted Wilson's first case, won the Republican nomination to challenge incumbent District Attorney Lynne Abraham. On March 31, 1997, eleven days after the primary election, Abraham released a videotape from the late 1980s which showed McMahon giving a training session on jury selection to other prosecutors in the District Attorney's Office. In the tape, McMahon makes a number of highly inflammatory comments implying that he regularly seeks to keep qualified African-Americans from serving on juries. Since these comments are central to this appeal, we will quote from them at length.

McMahon began his presentation by reviewing the procedures followed by Pennsylvania courts in selecting juries. He then proceeded to discuss his views of the goals a prosecutor should have in mind in selecting a jury:

The case law says that the object of getting a jury is to get-I wrote it down. I looked in the cases. I had to look this up because I didn't know this was the purpose of a jury. "Voir dire is to get a competent, fair, and impartial jury." Well, that's ridiculous. You're not trying to get that. You're-both sides are trying to get the jury most likely to do whatever they want them to do.

And if you go in there and any one of you think you're going to be some noble civil libertarian and try to get jurors, "Well, he says he can be fair; I'll go with him," that's ridiculous. You'll lose and you'll be out of the office; you'll be doing corporate law.

McMahon went on to discuss certain categories of people that he believed did not make good jurors. At various times in the tape, he told the assembled prosecutors to avoid "smart people," law students and lawyers, social workers, "very esoteric people," teachers, and "intelligent doctors." But the group he discussed most was African-Americans:

And that is-and, let's face it, again, there's the blacks from the low-income areas are less likely to convict. It's just-I understand it. It's understandable proposition. 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.

McMahon told his audience that, while many types of blacks were poor jurors, certain blacks could be prosecution-friendly:

Another factor-I'll tell you, if-you know, in selecting blacks, again, you don't want the real educated ones, again. This goes across the board of all races; you don't want smart people. And, again, but if you're sitting down and you're going to take blacks, you want older blacks. You want older black men and women, particularly men. Older black men are very good. Guys 70, 75 years old are very good jurors, generally speaking. . . .

Older black women, on the other hand, when you have like a black defendant who's a young boy and they can identify as his, you know-motherly type thing, are a little bit more different. . . .

The other thing is blacks from the South, excellent. . . .

In particular, he advised his audience to avoid black women:

Again, I think black men are-in my experience, black women, young black women, are very bad. There's an antagonism. I guess maybe because they're downtrodden on two respects, they got two minorities, they're women and they're and blacks, so they're downtrodden in two areas. . . . And so younger black women are difficult, I've found.

Despite his concerns regarding black jurors, McMahon cautioned his audience against selecting all-white juries:

And, again, some people say, well the best jury is an all white jury. I don't buy that, particularly with a black defendant, because you're going to have-you could have reverse reaction there. I think that you need dynamics because you don't want anybody to go back in there-because a lot of times your witnesses are going to be black; most of the time. So you don't want this all white jury to go back there and say to themselves, "Aw, who gives a shit?" You know what I mean? You don't want that attitude at all, and you may get that kind of reverse racism in your case.

I've always felt that a jury of like eight whites and four blacks is a great jury, or nine and three, because then you're not going to get any of that in there. You're not going to get any of that racist type of attitude because a white guy is not going to sit in that jury and say, "Aw, them people live like this and that" with other blacks sitting in the room.

In order to maintain the proper racial composition, McMahon advised his audience to record the race of potential jurors:

Another thing to do . . . when a jury comes in the room, . . . count them. Count the blacks and whites. You want to know at every point in that case where you are. . . . You don't want to look there or go, "Is there a black back there? Wait a minute. Are you a black guy?"

McMahon then proceeded to end his presentation, ironically, with a brief discussion of the Supreme Court's decision in Batson:

One other-now, I'm sure you're all familiar, if we talk about the case law-I generally don't talk much about case law, but the new case is Batson versus Kentucky. I'm sure you've all become aware of that case. . . .

But in the future we're going to have to be aware of this case, and the best way to avoid any problems with it is to protect yourself. And my advice would be in that situation is 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 later time if something happens, because if they-because the way the case is stated, that it's only after a prima facie showing that you're doing this that it becomes-that the trial judge can then order you to then start showing why you're striking them not on racial basis.

So if-let's say you strike three blacks to start with, the first three people. And then it's like the defense attorney makes an objection saying that you're striking blacks. Well, you're not going to be able to go back and say, oh-and make ...

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