The opinion of the court was delivered by: Joel A. Pisano, U.S.D.J.
In November 2003, William Baskerville was arrested for distributing crack cocaine to an individual who was cooperating with federal law enforcement agents. In March 2004, while Baskerville was in jail awaiting trial, the principal cooperating witness against him, Kemo DeShawn McCray, was shot and murdered while walking down the street in Newark. In connection with McCray's death, Baskerville was charged with conspiring with his then lawyer, Paul Bergrin, and others to kill McCray in retaliation for cooperating against Baskerville and to prevent McCray from testifying. After nearly six weeks of jury selection and a trial that lasted over a month, on May 1, 2007, a jury convicted William Baskerville of two capital offenses -- conspiracy to murder a witness in violation of 18 U.S.C. § 1512(k) and conspiracy to retaliate against an informant in violation of 18 U.S.C. § 1513(c) -- as well as of several counts related to drug trafficking. The jury was unable to reach a unanimous verdict on whether the death penalty should be imposed for the capital offenses, therefore Baskerville was sentenced to life in prison without the possibility of release on all counts. Baskerville has appealed his conviction to the Court of Appeals for the Third Circuit.
On appeal, Baskerville has argued, among other things, that the Court erred in denying Baskerville's Batson*fn1 challenge to the prosecution's use of its peremptory strikes to remove certain black prospective jurors from the panel. While preparing for oral argument on the appeal, counsel for the Government discovered that the trial prosecutor's jury selection notes contained information relevant to the Batson claim, and the Government moved before the Court of Appeals to remand the matter to this Court for further proceedings. According to the Government's motion to remand, the notes "contain material that Appellant Baskerville potentially could use to bolster his [Batson] claim . [and] also contain material that is inconsistent with any such challenge." Motion to Remand at 1, No. 07-2927 (3d Cir.). These notes, however, were not part of the appellate record. The Government, therefore, requested a remand to allow this Court the opportunity to conduct a new Batson hearing and consider the new information with respect to its Batson ruling. Id. The Third Circuit, "declin[ing] to entertain new issues, or engage in proceedings, based on anything other than what is contained in the District Court record," remanded the matter and stated that while they "respect the government's desire to augment that record, . by remanding we are not deciding the extent, if any, to which the District Court should hold further proceedings or change its rulings based on any such further proceedings." Order at Docket Entry #266.
Shortly after the matter was remanded, Baskerville filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. In his motion, he alleges that the government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose evidence in its possession allegedly showing that Paul Bergrin, Baskerville's former attorney, also conspired to murder witnesses in cases unrelated Baskerville's case.
The jury selection process in this case was extensive and proceeded in several stages over a two-month period. The initial stage involved counsel and the Court preparing a comprehensive 42-page juror questionnaire that included, among other things, a number of questions devoted to the death penalty. Thereafter, on February 13, 15, and 16, 2007, several hundred prospective jurors were summoned to complete the questionnaire. On these dates, several individuals were excused due to hardship, after which approximately 224 prospective jurors remained. Their completed questionnaires were reviewed by counsel over the next 10 days. Beginning February 26 and continuing several days each week until March 21, 2007, the Court and counsel questioned the venirepersons, and many were struck for cause or excused.
On March 21, 2007, the remaining approximately 80 venirepersons were randomly reshuffled and assigned new juror numbers. Of these approximately 80 potential jurors, six were African American. Taking into account the number of peremptory strikes allotted to each side, the jury was to be selected from the first 52 (by newly assigned number) of these venirepersons. Of these 52 potential jurors, five were African American.
On March 29, 2007, the parties exercised their peremptory challenges. In total, the Government used 22 such challenges and Baskerville used 21.*fn2 In exercising their challenges, the Government struck four of the black potential jurors (juror numbers 35/31, 56/108, 47/72 and
33/36*fn3 ). After the first three black potential jurors had been struck, the defense raised a Batson challenge. Tr. 3204:8-11. In response, the Government argued that the defense did not make the required initial showing under Batson, and it further argued that it exercised its challenges against these prospective jurors for race-neutral reasons:
MR. FRAZER: Number 31 clearly said she leans toward life imprisonment. That was the question the defense put, how do you lean one way or the other, even though you say you can be fair. She leans toward life imprisonment. We thought that she should have been challenged anyway.
She also said -- first of all, her child's father is in jail, so that's another reason that she may not be appropriate, she may harbor feelings about the criminal justice system. For those reasons, Judge, -- and she said it would be really hard to impose the death penalty. For those reasons, we challenged juror number 31.
MR. FRAZER: 108, wrote on her questionnaire, "thou shall not kill" is her religion and she agreed it. She "hates the idea of the death penalty." This is a quote. That's what she said both on the questionnaire and when I questioned her, she said that was the correct words.
Her husband's brothers are both in jail for drug-related offenses and has been in jail off and on at various times for five years, one of them and one recently went in for a drug offense.
She said as to that one, he was at the wrong place at the wrong time, so obviously that's questionable about whether she can -- what her attitudes toward law enforcement might be. Those are the reasons for juror number 108, which I think are fairly obvious.
* * * . she was the Jamaican woman who was just all over the place and she had concerns over the death penalty that it may not -- what happens if it is not the right person? She was easily confused, she went back and forth on numerous questions.
Other than that, I'd have to pull my questionnaire, but I believe she also had a family member, husband's cousin in jail, but I would have to actually get the questionnaire, Judge. I have numerous notations that her questions on the questionnaire were, to say the least, questionable. I have seven of them listed. I'm just going to pull that for a moment.
First, on the questionnaire, she failed to fill out her county and town of residence. She did not fill out the portions of the questionnaire which made it -- it was unusual actually in relation to the rest of the pool. She, for instance, did not fill out her education in the questionnaire. She did not fill out anybody that influenced her in her life and again, based upon -- I remember her clearly, Judge. Her answers were equally kind of back and forth throughout the entire process.
She also didn't fill out question 67, 68 regarding the defendant testifying and the presumption of innocence.
Overall, those were the reasons that the Government struck this juror. She also put a question mark under her religion, what her religion or spiritual ...