Mumia ABU-JAMAL, a/k/a Wesley Cook Mumia Abu-Jamal, Appellant at No. 02-9001 v. Martin HORN, Pennsylvania Director of Corrections; Conner Blaine, Superintendent, SCI Greene; District Attorney for Philadelphia County; The Attorney General of the State of Pennsylvania, Appellants at No. 01-9014.
Nos. 01-9014, 02-9001
United States Court of Appeals, Third Circuit
March 27, 2008
520 F.3d 272
IV.
For the reasons given above, we do not find the BIA‘s interpretation of the cancellation of removal provision unreasonable. We will therefore DENY the petition for review.
Robert R. Bryan, Esquire (Argued), San Francisco, CA, Judith L. Ritter, Esquire (Argued), Widener University School of Law, Wilmington, DE, for Appellee/Cross-Appellant, Mumia Abu-Jamal.
Christina A. Swarns, Esquire (Argued), NAACP Legal Defense and Educational Fund, Inc., New York, NY, for Amicus Curiae-Appellee, The NAACP Legal Defense and Educational Fund, Inc.
Jill Soffiyah Elijah, Esquire, Criminal Justice Institute, Harvard Law School, Cambridge, MA, for Amici Curiae-Appellees, National Lawyers Guild, National Conference of Black Lawyers, International Association of Democratic Lawyers, Charles Hamilton Houston Institute for Race & Justice of Harvard Law School, Southern Center for Human Rights, National Jury Project.
Before: SCIRICA, Chief Judge, AMBRO and COWEN, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Chief Judge.
This petition for collateral review under
We consider four issues on appeal: (1) whether the Commonwealth‘s use of peremptory challenges violated Abu-Jamal‘s constitutional rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) whether the prosecution‘s trial summation denied Abu-Jamal due process; (3) whether Abu-Jamal was denied due process during post-conviction proceedings as a result of judicial bias; and (4) whether the jury charge and sentencing verdict sheet violated Abu-Jamal‘s constitutional rights under Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). We will affirm the judgment of the District Court.
I.
On December 9, 1981, between three thirty and four o‘clock in the morning, Philadelphia Police Officer Daniel Faulkner made a traffic stop of a Volkswagen driven by William Cook, Abu-Jamal‘s brother, on Locust Street between 12th and 13th Streets, in Philadelphia. Officer
Within a minute of Officer Faulkner‘s radio call, Officers Robert Shoemaker and James Forbes responded. Robert Chobert, a taxi cab driver who had just let out a passenger at 13th and Locust, stopped the officers before they arrived at the scene and notified them an officer had just been shot. Officer Shoemaker then approached the parked Volkswagen on foot and observed Abu-Jamal sitting on the curb. Despite Officer Shoemaker‘s repeated orders to freeze, Abu-Jamal did not remain still and reached for an object Officer Shoemaker could not yet identify. As Officer Shoemaker inched closer, he saw a revolver on the ground close to Abu-Jamal‘s hand. Officer Shoemaker kicked Abu-Jamal in the chest to move him away from the gun, and then kicked the gun out of Abu-Jamal‘s reach. Officer Shoemaker then motioned for Officer Forbes to watch Abu-Jamal while Shoemaker attended to Officer Faulkner. During this time, Officer Forbes also searched Cook, who had remained at the scene and was standing near the wall of an adjacent building. Cook made only a single statement: “I had nothing to do with it.”
Additional officers arrived on the scene. Officer Faulkner was immediately rushed to Thomas Jefferson University Hospital, where he was later pronounced dead. Officers took Abu-Jamal into custody. He resisted arrest while officers moved him to a police van and tried to handcuff him. Abu-Jamal was also taken to Thomas Jefferson University Hospital. While Abu-Jamal was waiting for treatment in the emergency room‘s lobby, Priscilla Durham, a security guard on duty at the hospital, heard Abu-Jamal twice repeat, “I shot the motherfucker, and I hope the motherfucker dies.” Officer Gary Bell also heard Abu-Jamal make this statement. Hospital personnel then took Abu-Jamal into the emergency room for treatment.
Officer Forbes recovered two weapons from the scene. A standard police-issue Smith & Wesson .38 caliber Police Special revolver, registered and issued to Officer Faulkner, with one spent Remington .38 special cartridge, was found on the street about five feet away from Officer Faulkner. Ballistic testing later confirmed the bullet that struck Abu-Jamal was fired from Officer Faulkner‘s revolver. A Charter Arms .38 caliber revolver containing five “Plus-P” high-velocity spent cartridges was found on the sidewalk near Abu-Jamal. Abu-Jamal had purchased this revolver in June 1979 and it was registered in his name. Officer Anthony Paul, supervisor of the Firearms Identification Unit in the Laboratory Division of the Philadelphia Police Department, testified at trial that the bullet recovered from Officer Faulkner‘s head was badly mutilated and could not be matched with a specific firearm. Officer Paul also testified that the recovered bullet specimen had eight lands and grooves with a right hand direction of twist, which was consistent with a bullet fired from a Charter Arms revolver.
On December 15, 1981, Anthony Jackson was appointed counsel for Abu-Jamal. Abu-Jamal was arraigned on charges of first degree murder and other related charges. The court granted Abu-Jamal‘s request to proceed pro se and the court designated Jackson, who had spent five months preparing for trial, as backup counsel.
A jury trial commenced on June 7, 1982. Abu-Jamal was disruptive, uncooperative, and hostile. He repeatedly insisted that John Africa, a social activist who was not a lawyer, be appointed as counsel, even after the court denied this request. Abu-Jamal‘s conduct necessitated his removal from proceeding pro se for the remainder of the trial, and at times caused him to be physically removed from the courtroom. The jury was instructed against drawing negative inferences from his removal. Jackson, who was present throughout the entire trial and was reinstated as primary counsel when Abu-Jamal was removed, kept Abu-Jamal fully informed throughout the proceedings.
During the lengthy trial, Jackson cross-examined each witness called by the prosecutor. Abu-Jamal presented seventeen witnesses: eight fact witnesses and nine character witnesses. Neither Abu-Jamal nor Cook testified at trial. On July 2, 1982, the jury found Abu-Jamal guilty of first degree murder and of possessing an instrument of a crime.
On July 3, 1982, the jury heard evidence and argument in a penalty phase hearing. Later that day, the jury returned a sentence of death. The jury found one aggravating circumstance, killing a police officer acting in the line of duty, and one mitigating circumstance, Abu-Jamal‘s lack of a significant criminal record. The court denied post-trial motions on May 25, 1983, and imposed a sentence of death. The court then appointed new appellate counsel for Abu-Jamal‘s direct appeal to the Pennsylvania Supreme Court.
This case has been heard and considered by several courts throughout a lengthy appeals process. On direct review, the Pennsylvania Supreme Court affirmed the trial court‘s judgment of conviction and sentence on March 6, 1989. See Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989). Abu-Jamal presented a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), argument—the prosecution systematically excluded jurors by race through the use of peremptory challenges—for the first time on his direct appeal to the Pennsylvania Supreme Court. Abu-Jamal, 555 A.2d at 849. The
Abu-Jamal‘s new counsel filed a Petition for Stay of Execution, a Petition for Recusal of the post-conviction court, a Petition for Discovery, and a Petition for Post Conviction Relief (PCRA) on June 5, 1995. On June 12, 1995, the Court of Common Pleas of Philadelphia County (PCRA court) denied the petition for recusal, granted the petition for an evidentiary hearing, and held the petition for stay of execution under advisement. Abu-Jamal filed an emergency appeal to the Pennsylvania Supreme Court for recusal of the PCRA court; the court affirmed the denial of recusal. The PCRA court denied the petition for discovery on June 14, 1995. The Pennsylvania Supreme Court later denied reconsideration of the petitions for recusal and discovery.
The PCRA court scheduled the evidentiary hearing to begin on July 18, 1995. The Pennsylvania Supreme Court granted Abu-Jamal‘s emergency application for temporary stay of the evidentiary hearing and ordered that it commence on July 26, 1995. The PCRA court conducted an evidentiary hearing, which lasted from July 26 to August 15, 1995. The PCRA court granted Abu-Jamal‘s motion to stay his execution on August 7, 1995. Abu-Jamal presented a Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), argument—the jury instructions and verdict form employed in the sentencing phase were constitutionally defective—for the first time on collateral review before the PCRA court. See Commonwealth v. Abu-Jamal, No. 1357, 1995 WL 1315980, at *111 (C.P.Ct.Phila.Cty. Sept. 15, 1995) [hereinafter PCRA Op.]. On September 15, 1995, the PCRA court denied the petition for post-conviction relief. See PCRA Op., 1995 WL 1315980 at *128.
Abu-Jamal appealed to the Pennsylvania Supreme Court. Abu-Jamal filed a motion for remand for the purpose of taking additional testimony from Veronica Jones, an allegedly newly available witness. The Pennsylvania Supreme Court ordered the matter remanded to the PCRA court for an evidentiary hearing on the claim. The PCRA court held a three-day evidentiary hearing, and on November 1, 1996, denied Abu-Jamal‘s motion to supplement the record with Jones‘s testimony on the grounds that she was neither newly available nor credible. See Commonwealth v. Abu-Jamal, No. 1357 Jan. Term 1982 (C.P.Ct.Phila.Cty. Nov. 1, 1996).
Abu-Jamal then sought remand to the PCRA court to conduct additional discovery of prosecution and police files in their entirety, to supplement his Batson claim based upon a videotape released after his trial, to reassign the matter on remand to a different judge, and to elicit testimony from Pamela Jenkins, a witness who would allegedly support Abu-Jamal‘s claims of witness coercion and police intimidation. The Pennsylvania Supreme Court denied the motions to conduct additional discovery, to reassign the matter, and to supplement the Batson claim, but it did order remand for an evidentiary hearing to take Jenkins‘s testimony. The PCRA court
On October 29, 1998, the Pennsylvania Supreme Court unanimously affirmed the denial of post-conviction relief. See Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (1998) [hereinafter PCRA Appeal Op.]. The court denied a petition for reconsideration and denied Abu-Jamal‘s motion for Justice Ronald Castille to recuse himself. On October 4, 1999, the United States Supreme Court denied a petition for writ of certiorari. Abu-Jamal v. Pennsylvania, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Governor Ridge signed a second writ of execution, which was to be carried out on December 2, 1999.
Abu-Jamal filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania on October 15, 1999, raising twenty-nine claims asserting alleged defects in both the guilt and penalty phases of his trial, and errors in post-conviction review. On October 26, 1999, the District Court granted a motion to stay the execution. After extensive briefing by both parties, on December 18, 2001, the District Court, in a 270-page typescript opinion that thoroughly explored all the claims, denied the writ of habeas corpus on all guilt-phase claims, and did not grant a new trial. But the District Court found constitutional error in the penalty-phase Mills claim and granted habeas corpus relief on this ground, rendering the additional penalty-phase claims moot. See Abu-Jamal v. Horn, No. Civ. A. 99-5089, 2001 WL 1609690, at *1 (E.D.Pa. Dec.18, 2001). The District Court ordered the Commonwealth to conduct a new sentencing hearing or impose a life sentence. Id. at *130. The District Court issued a certificate of appealability as to the Batson claim. Id.1
The Commonwealth timely appealed on December 20, 2001, and Abu-Jamal timely cross-appealed on January 16, 2002. Abu-Jamal petitioned for certification of additional issues for appeal. On June 11, 2002, we stayed consideration of this appeal pending the decision of the Pennsylvania Supreme Court on appeal of Abu-Jamal‘s second PCRA petition. On October 8, 2003, the Pennsylvania Supreme Court affirmed the PCRA court‘s denial of relief. See Commonwealth v. Abu-Jamal, 574 Pa. 724, 833 A.2d 719 (2003). On April 29, 2004, we issued a subsequent stay pending the outcome of Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004), a relevant case pending before the United States Supreme Court. We lifted the stay on June 29, 2004, after the Court issued its opinion in Banks. The United States Supreme Court denied a third petition for a writ of certiorari on May 17, 2004. See Abu-Jamal v. Pennsylvania, 541 U.S. 1048, 124 S.Ct. 2173, 158 L.Ed.2d 742 (2004).
On October 19, 2005, we granted the motion to expand the certificate of appealability with regard to two claims: whether Abu-Jamal was denied his constitutional rights due to the prosecution‘s trial summation and whether Abu-Jamal was denied due process during post-conviction proceedings as a result of alleged judicial bias. We had already agreed to hear appeals on whether the use of peremptory challenges at trial violated Batson, and whether the verdict form and jury charge violated Mills.1
II.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA),
III.
As noted, Abu-Jamal, who is black, was convicted and sentenced for the 1981 murder of Officer Faulkner, who was white. While the matter was on direct appeal, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).2 Abu-Jamal contends the prosecutor used peremptory strikes in a racially discriminatory manner during jury selection in violation of Batson. To demonstrate racial discrimination in the use of peremptory challenges at the time of Abu-Jamal‘s trial, a defendant was required to “show a pattern and practice of racial discrimination in jury selection across multiple prosecutions,” Sistrunk v. Vaughn, 96 F.3d 666, 668 (3d Cir.1996), under the then-prevailing standard in Swain v. Alabama, 380 U.S. 202, 223-24, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Batson altered the evidentiary burden required to prove purposeful discrimination by eliminating Swain‘s requirement that a defendant show a prior pattern of discrimination; instead, it permitted a defendant to establish an equal protection violation based on discrimination in his trial alone. Batson “applie[s] retroactively to all cases, state or federal, pending on direct review or not yet final” at the time Batson was decided, Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), and therefore applies here. More than twenty-five years after the voir dire, we undertake a Batson analysis in a case where the defendant did not raise a timely objection at trial.
A.
The Commonwealth contends Abu-Jamal‘s Batson claim is barred because Abu-Jamal did not raise a contemporane
We are not aware of any of our prior state habeas corpus cases (
Although the Supreme Court has never defined timeliness for a Batson claim,4 the Court in Batson “envisioned an objection
Batson permits a party to establish an equal protection violation based on peremptory strikes in a single trial, id. at 93-95, and repudiates the Swain evidentiary standard, which required proof of discrimination “in case after case,” Swain, 380 U.S. at 223.5 Application of Batson‘s three-part burden-shifting framework requires attention by the trial judge to actions taken during jury selection in the case at hand. To determine whether the prosecutor excluded jurors on the basis of race, the procedure established in Batson relies on trial judges to consider “all relevant circumstances” as they occur in the case before it. Batson, 476 U.S. at 96. The Court emphasized the trial judge‘s central role, noting “[w]e have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor‘s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” Id. at 97.
A Batson claim requires a fact-intensive inquiry into the prosecutor‘s use of peremptory challenges. A timely objection gives the trial judge an opportunity to promptly consider alleged misconduct during jury selection and develop a complete
The most recent guidance from the Supreme Court on Batson comes from Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), a state capital murder case. Snyder “center[ed] his Batson claim on the prosecution‘s strikes of two black jurors.” Id. at 477. During voir dire, he timely objected to the prosecution‘s use of peremptory challenges against both jurors. The trial court preserved important venire information. Id. at 475-76 (“Eighty-five prospective jurors were questioned as members of a panel. Thirty-six of these survived challenges for cause; 5 of the 36 were black; and all 5 of the prospective black jurors were eliminated by the prosecution through the use of peremptory strikes.“). The Supreme Court concluded that “[b]ecause we find that the trial court committed clear error in overruling petitioner‘s Batson objection with respect to [the first juror], we have no need to consider petitioner‘s claim regarding [the second juror].” Id. at 478. Although the Court focused on the third step of Batson, it emphasized the trial court‘s “pivotal role in evaluating Batson claims.” Id. It acknowledged that a Batson inquiry involves an evaluation of the prosecutor‘s credibility and the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge. In addition, race-neutral reasons for peremptory challenges often invoke a juror‘s demeanor (e.g., nervousness, inattention), making the trial court‘s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor‘s demeanor belies a discriminatory intent, but also whether the juror‘s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. Id. (citations and quotations omitted). The Court further “recognized that these determinations of credibility and demeanor lie peculiarly within a trial judge‘s province” and noted the deference accorded to the trial court. Id. (citations and quotations omitted).
Abu-Jamal did not object to the prosecutor‘s use of peremptory challenges at any point during voir dire or at his 1982
B.
Before we address the merits of the Batson claim, we must first consider procedural default. Besides the argument that Batson requires a contemporaneous objection at trial, the Commonwealth contends Abu-Jamal‘s failure to raise an objection to jury selection before trial renders it procedurally defaulted for purposes of habeas review. As noted, Abu-Jamal
On direct appeal, the Pennsylvania Supreme Court found Abu-Jamal had waived any Batson claim because he had not made an objection, in any form, during voir dire or at trial to the prosecutor‘s use of peremptory challenges. Id. The court stated:
There can be no doubt that under the longstanding teaching of Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (Pa. 1974), the appellant has waived any claim that the prosecutor engaged in discriminatory use of peremptory challenges to obtain an unrepresentative jury. Not only did he fail to advance the issue in any form resembling that adopted by the Supreme Court in Batson, he made no attempt even to frame the issue under the then prevailing rules of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
Id. But the court then said:
We have, at times, indicated that because of the extreme, indeed irreversible, nature of the death penalty, it may be appropriate to relax application of the waiver rule and address the merits of arguments raised for the first time in the direct appeal to this Court. In other capital cases, however, we have held that certain issues were waived for failure to raise them before the trial court. In light of this, the Commonwealth has argued in the alternative—waived or not, the appellant‘s claim of improper use of peremptories is without merit.
Id. (citation omitted). Without stating whether it was relaxing the waiver rule or not, the court proceeded to discuss the merits of Abu-Jamal‘s Batson claim and deny relief.12
On collateral review, the PCRA court recognized the Pennsylvania Supreme Court‘s discussion on the merits as an “alternative resolution” of the Batson claim. PCRA Op., 1995 WL 1315980, at * 103. Nonetheless, it concluded that the claim was not subject to further review under
On appeal of the denial of state collateral relief (PCRA), Abu-Jamal challenged the previous Batson rulings on ineffective assistance of counsel grounds as well as on the merits. The Pennsylvania Supreme Court found that Abu-Jamal‘s
argument as to the specific instances [of ineffective assistance] is largely redundant as he has elsewhere in this appeal raised the underlying merits respecting each of those instances and therein also included a claim of counsel‘s ineffectiveness. Accordingly, as this court has found no merit to any of those underlying claims, we need not, at this point, again individually analyze the claims since there can be no finding of ineffectiveness where the underlying claim lacks merit.
PCRA Appeal Op., 720 A.2d at 108.14 The court implied that it first addressed the claims on the merits, then denied relief on the specific claims of ineffective assistance due to lack of merit. When addressing Abu-Jamal‘s Batson claim the court did not explain whether it was addressing the claim directly or through the lens of ineffective assistance of counsel. The court ultimately denied relief, concluding that, on the merits, “we would still arrive at the same resolution of this issue that we did on direct appeal.” Id. at 114.
A federal habeas court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Lambrix v. Singletary, 520 U.S. 518, 522, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). A state procedural rule provides an independent and adequate basis for precluding federal review if “(1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner‘s claims on the merits; and (3) the state courts’ refusal in this instance is consistent with other decisions.” Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir. 1996).
As noted, for a claim to be procedurally defaulted, “all state appellate courts [must have] refused to review the petitioner‘s claims on the merits....” Albrecht, 485 F.3d at 115 (internal quotations omitted). “[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)) (internal citations omitted); see also Smith v. Freeman, 892 F.2d 331, 337 (3d Cir.1989) (“[W]e are not bound to en
The Pennsylvania Supreme Court, in its review of the PCRA court, did not clearly and expressly make a finding of procedural default or waiver with respect to the Batson claim. The court only discussed waiver with respect to those claims not raised on direct appeal. See PCRA Appeal Op., 720 A.2d at 88 n. 9 (finding the relaxed waiver doctrine has no applicability to claims not raised on direct appeal). Further, the Supreme Court did not clearly state whether it was addressing the merits of the Batson claim in the course of resolving the ineffective assistance of counsel claim. Nor did the Supreme Court identify which claims, if any, it would address only as ineffective assistance of counsel claims. Id. at 113-14. Without a clear and express statement that the state court denied relief on independent state procedural grounds, we cannot find the claim procedurally defaulted.15
C.
During voir dire, the prosecution exercised fifteen out of its twenty available peremptory challenges and removed ten black potential jurors from the venire. Abu-Jamal did not object to any of the peremptory challenges. Abu-Jamal struck at least one black juror that had been accepted by the prosecution. At the close of jury selection, the jury was composed of nine white jurors and three black jurors. The court later dismissed one of these black jurors, for unrelated reasons, after the trial began. The final empaneled jury consisted of ten white jurors and two black jurors. The record does not reveal the total number of venirepersons or the racial composition of the venire.
We now consider the merits of Abu-Jamal‘s Batson claim. As noted, we are guided by
To establish a prima facie case, the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant‘s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Batson, 476 U.S. at 96 (quotations and citations omitted). A prima facie case will be found if, after considering these facts and all relevant circumstances, the “evidence [is] sufficient to permit the trial judge to draw an inference that discrimination has occurred” in the prosecutor‘s exercise of peremptory challenges. Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). In Batson, the Court provided two examples of “relevant circumstances” courts could consider in deciding whether a defendant has established a prima facie case: (1) “a ‘pattern’ of strikes against black jurors included in the particular venire“; and (2) “the prosecutor‘s questions and statements during voir dire examination and in exercising his challenges.”16 476 U.S. at 97. The Supreme Court clarified in Johnson that the Court
did not intend the first step to be so onerous that a defendant would have to persuade the judge—on the basis of all the facts, some of which are impossible for the defendant to know with certainty—that the challenge was more likely than not the product of purposeful discrimination.
545 U.S. at 170.
D.
Abu-Jamal first raised a Batson claim on direct appeal, contending the prosecution improperly used peremptory
The PCRA court found the “Commonwealth did not intentionally or racially discriminate against African-American jurors in its use of peremptory strikes in violation of Batson and its progeny.” PCRA Op., 1995 WL 1315980, at *102. On review of the PCRA court‘s denial of post-conviction relief, the Pennsylvania Supreme Court reiterated its finding that Abu-Jamal had not established a prima facie case. PCRA Appeal Op., 720 A.2d at 114. Even though the Batson issue had been addressed on direct appeal, the court reconsidered the issue in light of a stipulation by both parties that the prosecution had used peremptory challenges to remove ten rather than eight black venirepersons. The court found “[e]ven assuming ... [this stipulation], we would still arrive at the same resolution of this issue that we did on direct appeal ... [that a]ppellant‘s current claim ... warrants no relief.” Id.
The District Court did not find objectively unreasonable the Pennsylvania Supreme Court‘s determination that Abu-Jamal had not established a prima facie case. Abu-Jamal, 2001 WL 1609690, at *107. The District Court noted four missing pieces of evidence often used when evaluating whether a defendant had established a prima facie case: (1) the racial composition of those jurors dismissed by the defendant; (2) the total number of jurors in the venire; (3) the racial composition of the entire venire; and (4) the number and race of those dismissed for cause. Id. at *106. In addition, the District Court found Abu-Jamal had not pointed to any improper statements or questions by the prosecution during voir dire. Id. After reviewing the state court‘s factual findings, the District Court found the AEDPA standard requires deference to these factual findings and the state supreme court‘s ruling. Id. at *107. The District Court found “federal law as set forth in Batson does not require” an outcome contrary to the state court‘s holding that Abu-Jamal failed to establish a prima facie case. Id.
The Pennsylvania Supreme Court concluded Abu-Jamal had not established a prima facie case. Accordingly, we need only review this first step of the Batson standard to determine whether the Pennsylvania Supreme Court‘s conclusion was an unreasonable application of clearly established federal law as determined by the United States Supreme Court. We begin with Batson, which provides that a “pattern” of discrimination is one relevant factor that may give rise to a prima facie case. Batson, 476 U.S. at 97. The Court in Batson did not articulate the evidence necessary to demonstrate a pattern, except to note, “[i]n cases involving the venire, this Court has found a prima facie case on proof that members of the defendant‘s race were substantially underrepresented in the venire from which the jury was drawn....” Id. at 94, 106
The Supreme Court has found prima facie Batson cases based on a pattern of discrimination, but only where the trial record has indicated both the strike rate and the racial composition of the venire. The strike rate is computed by comparing the number of peremptory strikes the prosecutor used to remove black potential jurors with the prosecutor‘s total number of peremptory strikes exercised. This statistical computation differs from the “exclusion rate,” which is calculated by comparing the percentage of exercised challenges used against black potential jurors with the percentage of black potential jurors known to be in the venire. See Overton v. Newton, 295 F.3d 270, 278 n. 9 (2d Cir.2002) (discussing the use of this evidence to determine statistical disparities in jury selection processes).
In Miller-El v. Cockrell, on which Abu-Jamal relies to demonstrate a pattern of discrimination, the Supreme Court evaluated the prosecution‘s jury selection procedures in considering whether the Court of Appeals for the Fifth Circuit erred in not granting a certificate of appealability. Miller-El, 537 U.S. at 331. The Court found “statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors.” Id. at 342. But in reaching this conclusion regarding the statistical evidence, the Court considered evidence that “[t]he prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members ... [and i]n total, 10 of the prosecutors’ 14 peremptory strikes were used against African-Americans.” Id. In reaching this conclusion regarding the statistical evidence, the Court in Miller-El relied upon both the strike rate and the exclusion rate. Similarly, in Johnson, the Court considered evidence that the prosecution used three of twelve peremptory challenges to remove all three black prospective jurors in the venire. 545 U.S. at 164, 173; see also People v. Johnson, 30 Cal.4th 1302, 1 Cal.Rptr.3d 1, 71 P.3d 270, 272 (2003). In both cases, the Court relied upon evidence of the racial composition of the venire. Neither case addresses a situation in which the strike rate and the exclusion rate are unknown. Cf. Schriro, 127 S.Ct. at 1942 (finding that the state court‘s conclusion was not objectively unreasonable because the Supreme Court had “never addressed a situation like this“).
Some courts of appeals have noted the significance of considering the prosecution‘s strike rate in relation to the racial composition of the venire when evaluating whether a party has established a prima facie case under Batson. The Court of Appeals for the Eleventh Circuit in United States v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir.2005), found “[w]hile statistical evidence may support an inference of discrimination, it can do so only when placed in context. For example, the number of persons struck takes on meaning only when coupled with other information such as the racial composition of the venire....” Id. at 1044 (internal citations omitted). The court upheld the district court‘s finding that the defendant had not established a prima facie case based on a pattern of discrimination where the prosecution used five out of nine peremptory challenges to remove Hispanic potential jurors, in part because the prosecution‘s
In Medellin v. Dretke, 371 F.3d 270 (5th Cir.2004), the Court of Appeals for the Fifth Circuit denied a certificate of appealability for a Batson claim on the ground that the number of peremptory strikes alone is insufficient to establish a prima facie case without evidence of the racial composition of the entire venire. Id. at 278-79; see also Sorto v. Herbert, 497 F.3d 163, 171 (2d Cir.2007) (“When, as here, a Batson prima facie case depends on a pattern of strikes, a petitioner cannot establish that the state court unreasonably concluded that the pattern was not sufficiently suspicious unless the petitioner can adduce a record of the baseline factual circumstances attending the Batson challenge [, which] would likely include evidence such as the composition of the venire.... ‘Whether [a strike] rate creates a statistical disparity would require knowing the minority percentage of the venire ....‘” (quoting United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991)) (emphasis in original omitted)); Walker v. Girdich, 410 F.3d 120, 123 (2d Cir.2005) (finding a prima facie case had not been established based on a pattern of discrimination where the prosecutor used twelve out of thirteen peremptory strikes against black members of the venire because the record did not indicate the racial composition of the entire venire); United States v. Esparsen, 930 F.2d 1461, 1467 (10th Cir.1991) (“By itself, the number of challenges used against members of a particular race is not sufficient to establish or negate a prima facie case.... In this case, for instance, the prosecution‘s use of 71% (5/7) of its challenges against Hispanics would acquire some statistical meaning if we knew the percentage of Hispanics in the venire.“) (internal quotations omitted). In Medellin, the prosecution used six out of thirteen strikes to remove black members of the venire; the defendant did not provide any additional evidence to support his prima facie case. 371 F.3d at 278. The Court of Appeals for the Fifth Circuit held:
For the statistical evidence to be relevant, data concerning the entire jury pool is necessary. The number of strikes used to excuse minority and male jury pool members is irrelevant on its own. Indeed, depending on the make-up of the jury pool, such numbers could indicate that the state discriminated against Anglos and females.
Here, Abu-Jamal contends the record facts demonstrate a “pattern of strikes against black jurors” in the venire.17 Under Batson‘s first step, Abu-Jamal has the burden to develop a record sufficient to establish a pattern of discrimination that gives rise to an inference of discrimination. The record shows the prosecution used ten peremptory strikes to remove black venirepersons from the petit jury out of a total of fifteen peremptory strikes exercised, resulting in a strike rate of 66.67%. See PCRA Op., 1995 WL 1315980, at * 103.
There is no factual finding at any level of adjudication, nor evidence from which to
Under
Although we have cited the importance of the venire‘s racial composition, see, e.g., Clemons, 843 F.2d at 748; Deputy, 19 F.3d at 1492, we have previously found prima facie Batson claims established without this record evidence.21 But we believe
In Brinson v. Vaughn, 398 F.3d 225 (3d Cir.2005), we found a prima facie showing based on the strike rate alone, where the prosecution had used thirteen of fourteen peremptory challenges to remove black venirepersons. Although we found the high strike rate sufficient to establish a prima facie case in Brinson, we noted that the racial composition of the venire, if composed almost entirely of black venirepersons, could “provide an innocent explanation” that would weigh against finding a pattern of discrimination. Id. at 235.22
At issue is whether the Pennsylvania Supreme Court unreasonably applied Supreme Court precedent. Our standard on collateral review is whether the state‘s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
IV.
Abu-Jamal contends his constitutional rights were violated when the prosecutor, during his guilt-phase summation, stated that if the jury should find Abu-Jamal guilty, “of course there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final.” This comment, Abu-Jamal maintains, undermined the reasonable doubt standard and the jury‘s sense of responsibility for its verdict by suggesting that if jurors were unsure of his guilt, they should nevertheless convict because there would be further review in later proceedings. Abu-Jamal contends this violated his rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the Constitution.
The Commonwealth contends the prosecutor‘s comments did not infringe Abu-Jamal‘s right to a jury trial, his right to the presumption of innocence, or his right not to be convicted unless proven guilty beyond a reasonable doubt. Rather, when viewed in their full context, the Commonwealth contends, the prosecutor‘s comments accurately informed the jury of the appellate court‘s role. The acknowledgment of an appeals process, the Commonwealth contends, is common knowledge and was not improper. In addition, the Commonwealth contends the judge emphasized at several points in the trial that only the court was responsible for determining all matters of law and that the arguments of the attorneys were neither law nor evidence. These instructions, the Commonwealth contends, were sufficient to overcome any possible misunderstanding.
On direct review, the Pennsylvania Supreme Court concluded Abu-Jamal had waived this claim by failing to object to the prosecutor‘s comments when they were made, and by failing to raise it in post-trial motions or as part of an ineffective assistance of counsel claim. Abu-Jamal, 555 A.2d at 854. The Pennsylvania Supreme Court noted that in a non-capital case the claim would be summarily dismissed as having been waived. Id. But it decided to address the claim on the merits in light of the relaxed waiver rule then used in capital cases. Id. Addressing the claim on the merits, the court applied the rule that “a new trial is not required unless the unavoidable effect of the prosecutor‘s language would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Id. (citing Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980)). The court found that “[i]n the context of the entire summation, it is clear that the prosecutor was not attempting to suggest the jury should resolve any doubts by erring on the side of conviction because an error on the side of acquittal would be irreversible.” Abu-Jamal, 555 A.2d at 854-55. The court added:
In light of the [trial] court‘s repeated instructions to the jury that the arguments of counsel were neither evidence nor statements of the law to be followed, and the instructions on the Commonwealth‘s burden of proving all elements of the crime charged beyond a reasonable doubt, we are not persuaded that the isolated comments now complained of deprived the appellant of a fair trial.
Id. at 855. We note Abu-Jamal did not specifically challenge the “appeal after appeal” comment before the PCRA court or in his PCRA appeal to the Pennsylvania Supreme Court.
Because the Pennsylvania Supreme Court applied the relaxed waiver rule and addressed the claim on its merits, we will address it here. In support of his claim, Abu-Jamal relies on Caldwell, in which a prosecutor told a capital sentencing jury the defense “would have you believe that you‘re going to kill this man and they know—they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it.” Caldwell, 472 U.S. at 325, 105 S.Ct. 2633. The trial court overruled a contemporaneous objection by the defense and the prosecutor proceeded to tell the jury “the decision you render is automatically reviewable by the [state] Supreme Court. Automatically. . . .” Id. at 325-26, 105 S.Ct. 2633.
The Supreme Court vacated the death sentence that resulted from the bifurcated Caldwell trial, citing its concern whether the “capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its ‘truly awesome responsibility.‘” Id. at 341, 105 S.Ct. 2633. In Caldwell, the Court determined that the jury‘s awareness was undercut by the prosecutor‘s comments and the trial court‘s response. First, the trial judge failed to correct, and openly agreed with, the prosecutor‘s statement, “strongly implying that the prosecutor‘s portrayal of the jury‘s role was correct.” Id. at 339, 105 S.Ct. 2633. Second, the comments painted an image of the jury‘s role in capital sentencing that was “fundamentally incompatible with the Eighth Amendment‘s heightened ‘need for reliability in the determination that death is the appropriate punishment in a specific case.‘” Id. at 340, 105 S.Ct. 2633 (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)).
Abu-Jamal concedes that Caldwell is limited to capital sentencing, but suggests there is a “close analogy” between comments made to the jury during the guilt phase and the sentencing phase. He relies on several state court cases, nearly all of which predate the Supreme Court‘s approval of bifurcated capital trials. Some of these cases turn on the prosecutor‘s factual misstatements to the jury about state appellate procedure; some were decided on altogether different grounds; some are inapplicable here because, like Caldwell, they involve the penalty phase of trial, instructions given by the trial judge, or comments made at other points in the
The Pennsylvania Supreme Court was not objectively unreasonable in determining Caldwell was inapplicable because the comments at issue were made during the guilt phase. See Darden, 477 U.S. at 183 n. 15 (noting Caldwell applies to “comments by a prosecutor during the sentencing phase of trial to the effect that the jury‘s decision as to life or death was not final, [and] that it would automatically be reviewed by the [s]tate Supreme Court, and that the jury should not be made to feel that the entire burden of the defendant‘s life was on them“); Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) (“[Caldwell is] relevant only to certain types of comment[s]—those that mislead the jury to feel less responsible than it should for the sentencing decision.“) (internal quotations omitted). In addition, the Pennsylvania Supreme Court was not objectively unreasonable in concluding the trial was not so infected with unfairness as a result of these comments that Abu-Jamal‘s due process rights were violated. Together, the prosecutor‘s full statement to the jury and the court‘s instructions stressed, rather than diminished, the responsibility faced by the jury. Darden, 477 U.S. at 183 n. 15 (noting courts should consider the prosecutor‘s comments in the context of the facts and circumstances of the entire case when determining whether a prosecutor‘s argument rendered a trial unfair). The trial court gave repeated instructions to the jury that the arguments of counsel were not evidence or law. And, the comments did not manipulate or misstate the evidence or any facts.24 Id. at 181-82, 106 S.Ct. 2464. In any event, the comments did not rise to the “sort of egregious misconduct” that amounts to a denial of constitutional due process, Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), and they did not have a “substantial and injurious effect or influence in determining the jury‘s verdict.” Abu-Jamal, 2001 WL 1609690, at *92 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). For these reasons, the Pennsylvania Supreme Court‘s decision was neither contrary to nor an unreasonable application of Supreme Court precedent.
V.
Abu-Jamal contends Judge Sabo, the Court of Common Pleas Judge who presided over both the trial and post-conviction review, was biased against him during PCRA review, which deprived him of his right to due process as guaranteed by the Fifth and Fourteenth Amendments. Abu-Jamal presented this claim to the Pennsyl-
The District Court held Abu-Jamal‘s judicial bias allegations were not cognizable on state habeas review because “a viable habeas claim cannot be predicated on petitioner‘s allegation of error in his PCRA hearing.” Abu-Jamal, 2001 WL 1609690, at * 129. The District Court adopted the reasoning of the majority of courts of appeals that had decided the issue. Id. at *128-29, n. 96. The District Court also noted it had determined the state court fact-finding “to be reasonable, or, if unreasonable, not the basis of the state court‘s decision” and that the state courts’ denial of this claim was not contrary to or an unreasonable application of federal law. Id. at *129, 130.
In granting a certificate of appealability to determine whether Abu-Jamal was denied due process during post-conviction proceedings, we directed the parties to address whether denial of due process resulting from alleged judicial bias during state post-conviction proceedings can be grounds for federal habeas corpus relief. In the meantime, we addressed the issue in another case, holding that alleged errors in collateral proceedings are not a proper basis for habeas relief. See Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir.2004) (“[H]abeas proceedings are not the appropriate forum . . . to pursue claims of error at the PCRA proceeding. . . . It is the original trial that is the ‘main event’ for habeas purposes.“). As we explained in Lambert:
The federal courts are authorized to provide collateral relief where a petitioner is in state custody or under a federal sentence imposed in violation of the Constitution or the laws or treaties of the United States. Thus, the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner‘s conviction; what occurred in the petitioner‘s collateral proceeding does not enter into the habeas calculation. We have often noted the general proposition that habeas proceedings are ‘hybrid actions‘; they are ‘independent civil dispositions of completed criminal proceedings.’ Federal habeas power is ‘limited . . . to a determination of whether there has been an improper detention by virtue of the state court judgment.’
Id. (quoting Hassine v. Zimmerman, 160 F.3d 941, 954-55 (3d Cir.1998)) (internal citations omitted). Accordingly, this claim is not a cognizable basis for habeas relief. Lambert, 387 F.3d at 247.25
The District Court granted relief on Abu-Jamal‘s claim that the jury instructions and verdict form employed in the sentencing phase of Abu-Jamal‘s trial were constitutionally defective under Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), and found the Pennsylvania Supreme Court was objectively unreasonable in finding otherwise. The District Court found a “reasonable likelihood that the jury has applied the . . . instruction [and form] in a way that prevents the consideration of constitutionally relevant evidence regarding the existence of mitigating circumstances (i.e., those weighing against the imposition of the death penalty).” Abu-Jamal, 2001 WL 1609690, at *1 (quoting Boyde, 494 U.S. at 380 (alteration in original)). The Commonwealth appealed the District Court‘s grant of relief on this claim.
A.
The Commonwealth contends Abu-Jamal did not exhaust the Mills claim as required by
The Supreme Court decided Mills in 1988, while Abu-Jamal‘s claim was on direct appeal to the Pennsylvania Supreme Court.26 Abu-Jamal first raised the Mills claim on PCRA review. The PCRA court found that because Abu-Jamal failed to assert this claim at trial or on direct appeal, “this claim should be waived,” and could not form the basis for PCRA relief. PCRA Op., 1995 WL 1315980, at * 111. The PCRA court then considered the Mills claim on the merits in the alternative but did not find a constitutional violation, concluding that similar verdict forms and instructions had been upheld in Zettlemoyer v. Fulcomer, 923 F.2d 284, 306-08 (3d Cir.1991), and by the Pennsylvania Supreme Court. Id. The Pennsylvania Supreme Court, reviewing the PCRA court, noted “[Abu-Jamal] next submits that the penalty phase verdict form was constitutionally defective pursuant to the dictates of Mills v. Maryland . . .” and then proceeded to address the Mills claim on the merits. PCRA Appeal Op., 720 A.2d at 119. Because Abu-Jamal presented the Mills claim to the state courts on the merits, we find this claim exhausted and properly before us for review.
Additionally, the Commonwealth contends that Abu-Jamal‘s Mills claim is pro-
Abu-Jamal asserted the Mills claim for the first time on collateral review. The PCRA court stated:
[Abu-Jamal] fails to raise this claim at trial or on direct appeal. Therefore, this claim should be waived. As [Abu-Jamal] has not overcome that procedural bar, the claim is [sic] should be precluded from PCRA review and may not be further considered.
42 Pa. Cons.Stat. § 9543(a)(3) . The following discussion of the merits is undertaken in the alternative.
PCRA Op., 1995 WL 1315980, at *111. The PCRA court proceeded to discuss the merits only “in the alternative.” Id.
On appeal of the denial of state collateral relief (PCRA) Abu-Jamal challenged the previous Mills rulings on ineffective assistance of counsel grounds as well as on the merits. Upon review of the PCRA court‘s decision, the Pennsylvania Supreme Court addressed the Mills claim on the merits. The court did not clearly state it was addressing the merits of the Mills claim as a component of an ineffective assistance of counsel claim nor did it expressly find the claim waived. The court‘s discussion of waiver, relegated to a footnote at the beginning of its opinion, see PCRA Appeal Op., 720 A.2d at 88 n. 9, is insufficient to bar our review. The court did not enumerate which claims, if any, it would address only as ineffective assistance claims. Without a clear and express statement that the state court disposed of this specific claim on independent state procedural grounds, we cannot find the claim procedurally defaulted.27
On the merits, the Commonwealth contends our review is limited to an assessment of the verdict form. The Commonwealth maintains Abu-Jamal only raised a Mills claim based on the structure of the verdict form and did not fairly present an allegation of Mills error based on the jury instructions. But in his briefs to both the PCRA court and the Pennsylvania Supreme Court on PCRA review, Abu-Jamal raised allegations of Mills error grounded in both the verdict form and the trial court‘s jury instruction.28 In his brief to the Pennsylvania Supreme Court on PCRA review, Abu-Jamal focused his argument on the structure of the verdict form, but he cited Mills for the proposition that the combined effect of the jury instructions and the verdict form may result
Our review is limited to whether the Pennsylvania Supreme Court unreasonably applied Mills. See
B.
Abu-Jamal contends the verdict form unconstitutionally precluded members of the jury from considering a particular mitigating circumstance unless there was unanimous agreement as to its proof. Abu-Jamal maintains the jury instructions compounded this error. The Commonwealth contends the Pennsylvania Supreme Court‘s decision did not unreasonably apply Supreme Court precedent under the
In Mills, the Supreme Court vacated a death sentence after finding there was a “substantial probability that reasonable jurors, upon receiving the judge‘s instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.” Mills, 486 U.S. at 384, 108 S.Ct. 1860. In capital cases, a juror must “be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death.” McKoy v. North Carolina, 494 U.S. 433, 442–43, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990); see also Mills, 486 U.S. at 374-75, 108 S.Ct. 1860; Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion).
The petitioner in Mills challenged Maryland‘s capital sentencing statute, as applied to him, contending a reasonable juror could have understood the verdict form and the judge‘s instructions to require jury unanimity on any mitigating circumstances. The Court considered an “intuitively disturbing” hypothetical situation:
In Mills, the Court posed “[t]he critical question . . . whether petitioner‘s interpretation of the sentencing process is one a reasonable jury could have drawn from the instructions given by the trial judge and from the verdict form employed in this case.” Id. at 375-76, 108 S.Ct. 1860. In Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), the Supreme Court clarified the legal standard as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id. at 380, 110 S.Ct. 1190. The District Court found the Pennsylvania Supreme Court‘s determination unreasonable. We agree.
Turning to this case, we examine the verdict form used at trial. The first page of the three-page verdict form stated, in part:
(1) We, the jury, unanimously sentence the defendant to
[X] death
[ ] life imprisonment.(2) (To be used only if the aforesaid sentence is death) We, the jury, have found unanimously
[ ] at least one aggravating circumstance and no mitigating circumstance. The aggravating circumstance(s) is/are ______
[X] one or more aggravating circumstances which outweigh any mitigating circumstances. The aggravating circumstance(s) is/are ______ A ______
The mitigating circumstance(s) is/are ______ A ______
The second page of the verdict form listed the possible aggravating circumstances and the third page listed the possible mitigating circumstances, each with a designated space for the jury to check those aggravating or mitigating circumstances found. Neither the second nor the third page had additional instructions. At the bottom of the third page, the jurors signed their names and dated the form.
The jury charge here recited, in part:
Members of the jury, you must now decide whether the defendant is to be sentenced to death or life imprisonment. The sentence will depend upon your findings concerning aggravating and mitigating circumstances. The Crimes Code provides that a verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.
The verdict must be a sentence of life imprisonment in all other cases. . . . The Commonwealth has the burden of proving aggravating circumstances beyond a reasonable doubt. The defendant has
the burden of proving mitigating circumstances, but only by a preponderance of the evidence. This is a lesser burden of proof than beyond a reasonable doubt. A preponderance of the evidence exists where one side is more believable than the other side. . . . Now, the verdict is for you, members of the jury. Remember and consider all of the evidence giving it the weight to which it is entitled. Remember that you are not merely recommending a punishment. The verdict you return will actually fix the punishment at death or life imprisonment. Remember again that your verdict must be unanimous. It cannot be reached by a majority vote or by any percentage. It must be the verdict of each and everyone [sic] of you.
Remember that your verdict must be a sentence of death if you unanimously find at least one aggravating circumstance and no mitigating circumstances. Or, if you unanimously find one or more aggravating circumstances which outweigh any mitigating circumstances. In all other cases, your verdict must be a sentence of life imprisonment.
The court then read the verdict form to the jury.
The Pennsylvania Supreme Court on PCRA review found there was no Mills violation. PCRA Appeal Op., 720 A.2d at 119. It reached this conclusion without evaluating whether there was a reasonable likelihood that the jury could have misinterpreted the entire scheme employed at the sentencing phase, that is, the structure and substance of the verdict form together with the oral instructions from the judge. As noted, the Pennsylvania Supreme Court did not consider the judge‘s jury instructions. Instead, the court focused and relied on the verdict form in finding no merit to the Mills claim. Id. In its opinion, the Pennsylvania Supreme Court only addressed the verdict form, stating:
The verdict slip employed in the instant case consisted of three pages. The requirement of unanimity is found only at page one in the section wherein the jury is to indicate its sentence. The second page of the form lists all the statutorily enumerated aggravating circumstances and includes next to each such circumstance a designated space for the jury to mark those circumstances found. The section where the jury is to checkmark those mitigating circumstances found, appears at page three and includes no reference to a finding of unanimity. Indeed, there are no printed instructions whatsoever on either page two or page three.
Id. In addition, the court found that the jurors’ signatures on the third page was “of no moment since those signature lines naturally appear at the conclusion of the form and have no explicit correlation to the checklist of mitigating circumstances.” Id. The court then held it could not conclude “that the structure of the form could lead the jurors to believe that they must unanimously agree on mitigating evidence before such could be considered.” Id. In reaching its conclusion, the Pennsylvania Supreme Court noted it had upheld similar verdict forms against a Mills challenge. Id.
The District Court found the Pennsylvania Supreme Court‘s decision was objectively unreasonable under Mills and Boyde. Abu-Jamal, 2001 WL 1609690, at *126. The court relied upon several factors to reach this conclusion, including the Pennsylvania Supreme Court‘s failure to address “the consequence of the jury instructions in this case, much less to reach a reasonable conclusion regarding the effect of the Jamal charge, and [it] compounded this error by unreasonably failing
We agree the Pennsylvania Supreme Court‘s failure to address the entire sentencing scheme resulted in an incomplete and unreasonable application of Mills and Boyde. It was unreasonable for the Pennsylvania Supreme Court to reach its conclusion that the “structure of the form,” PCRA Appeal Op., 720 A.2d at 119, could not lead to juror confusion based on only a portion of the form, rather than the entire form, and without evaluating whether there was a reasonable likelihood of jury confusion based on an interpretation of the judge‘s jury instructions and the entire verdict form together.
The verdict form‘s first page, especially the language that stated “we, the jury, have found unanimously . . . one or more aggravating circumstances which outweigh any mitigating circumstances,” reads that both aggravating and mitigating circumstances must be found unanimously. There is nothing in the verdict form to clarify that the jury should apply the unanimity requirement to aggravating circumstances, but not to mitigating circumstances. See Mills, 486 U.S. at 378-79, 108 S.Ct. 1860 (recognizing absence of an explicit instruction to jury indicating how jury should behave if some, but not all, find a mitigating circumstance to apply to the defendant). The Pennsylvania Supreme Court did not evaluate whether this language would create a reasonable likelihood the jury had applied the form in violation of Mills. Furthermore, the jury instructions risked jury confusion about a unanimity requirement for both aggravating and mitigating circumstances. Throughout the jury instructions, the court repeatedly emphasized unanimity in close relation to its discussion of mitigating circumstances. The jury charge stated: “The Crimes Code provides that a verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.” The trial court reinforced the impression that unanimity had to be found for both aggravating and mitigating circumstances by stating, “remember again that your verdict must be unanimous. It cannot be reached by a majority vote or by any percentage. It must be the verdict of each and every one of you.” The judge‘s charge did not instruct the jury to distinguish between mitigating and aggravating circumstances in their application of the unanimity requirement. This absence is notable because the trial court distinguished between the burdens of proof the jury should apply to mitigating and aggravating circumstances. The risk of confusion is higher where the court distinguishes between aggravating and mitigating circumstances on one ground, but not on any other. For these reasons, we conclude that the verdict form together with the jury instructions were misleading as to whether unanimity was required in consideration of mitigating circumstances.
We have examined similar instructions in previous cases and found Mills violations. See Albrecht, 485 F.3d at 119-120
We conclude the Pennsylvania Supreme Court‘s decision was objectively unreasonable under the dictates of Mills and Boyde. The jury instructions and the verdict form created a reasonable likelihood that the jury believed it was precluded from finding a mitigating circumstance that had not been unanimously agreed upon. Accordingly, we will affirm the District Court‘s grant of relief on this claim.
VII.
For the foregoing reasons, we will affirm the District Court‘s judgment, which granted a writ of habeas corpus as to the Mills sentencing phase claim, but denied the petition for the balance of the claims asserted. As the District Court noted, the “Commonwealth of Pennsylvania may conduct a new sentencing hearing in a manner consistent with this opinion within 180 days of the Order accompanying this [opinion], during which period the execution of the writ of habeas corpus will be stayed, or shall sentence [Abu-Jamal] to life imprisonment.” Abu-Jamal, 2001 WL 1609690, at *130.
AMBRO, Circuit Judge, concurring in part and dissenting in part:
Excluding even a single person from a jury because of race violates the Equal Protection Clause of our Constitution. See Batson v. Kentucky, 476 U.S. 79, 84-86, 99 n. 22, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This simple justice principle was reaffirmed by our Supreme Court this past week. Snyder v. Louisiana, — U.S. —, 128 S.Ct. 1203, 1207, — L.Ed.2d — (2008).
The Supreme Court in Batson acknowledged how important this principle is by replacing the standard it set out but two decades before in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Swain required a defendant to show proof of racially discriminatory peremptory challenges over a series of cases; after Batson, a defendant may “make a prima facie showing of purposeful racial discrimination in the selection of the venire by relying solely on the facts concerning . . . his case.” Batson, 476 U.S. at 95, 106 S.Ct. 1712 (emphasis in original). In so holding, the Court made no statement that a defendant forfeited his right to a fair jury trial of his peers if he failed to object to a prosecutor‘s racially discriminatory use of peremptory strikes in jury selection during the selection itself. Nor did it impose an onerous burden on a defendant to set in motion Batson‘s burden-shifting framework by making a prima facie case.
I. Contemporaneous Objection Rule
I address first this case‘s newly created contemporaneous objection rule for habeas petitions. This rule imposes, as a prerequisite to the federal claim, the requirement that a defendant make a “timely”32 objection to the prosecutor‘s racially based use of peremptory challenges. It goes against the grain of our prior actions, as our Court has addressed Batson challenges on the merits without requiring that an objection be made during jury selection in order to preserve habeas review.
A. Should Our Court Require a Contemporaneous Objection in a State-Court Trial as a Prerequisite to a Federal Batson Claim?
As my colleagues concede, Abu-Jamal‘s failure to lodge an objection to the exclusion of black potential jurors contemporaneous to that event would not result in a state procedural bar33 because the Pennsylvania Courts (with the federal District Court following suit) considered Abu-Jamal‘s Batson claim on its merits. But in this case our Court imposes a federal contemporaneous objection requirement—as a prerequisite for a Batson claim—in addition to any potential state procedural bar. I do not agree with such a requirement, and I do not believe that Abu-Jamal forfeited his right to present a Batson claim by failing to lodge an objection before trial.
No doubt an objection made at the time of a prosecutor‘s constitutionally infirm use of a peremptory challenge is most apt to ensure that Batson issues are addressed expediently and efficiently. The trial judge can best set the right remedy quickly, such as “discharg[ing] the venire and select[ing] a new jury from a panel not previously associated with the case or . . . disallow[ing] the discriminatory challenges and resum[ing] selection with the improperly challenged jurors reinstated on the venire.” Batson, 476 U.S. at 99 n. 24, 106 S.Ct. 1712 (citations omitted). After the
That a contemporaneous objection is helpful in the context of Batson does not mean, however, that it is constitutionally called for. The Supreme Court has never announced a rule requiring a contemporaneous objection as a matter of federal constitutional law, and I see no reason for us to do so now. The Court, in leaving the implementation of the Batson decision to the trial courts, stated that “[w]e decline . . . to formulate particular procedures to be followed upon a defendant‘s timely objection to a prosecutor‘s challenges.” Id. at 99, 106 S.Ct. 1712. My colleagues believe this demonstrates that the Supreme Court “‘envisioned an objection raised during the jury selection process’ ” prior to trial. See Maj. Op. 280-81 (quoting McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir.1996)). What they overlook is that, even if the Supreme Court “envisioned” an objection, it authorized the states to craft rules for it as a matter of state procedural law.34 Thus, I read this sentence from Batson as emphasizing that the Court trusts the state courts to fashion their own protocol and will not “formulate particular procedures to be followed,” including the procedures governing the timeliness of an objection. See Batson, 476 U.S. at 99, 106 S.Ct. 1712.
And that is as it should be. As stated above, the trial court has significantly more options to address a Batson violation when it is discerned during jury selection. But nowhere in the Supreme Court‘s grant of discretion to trial courts is the pronouncement that, where a contemporaneous objection is not made and the state courts nonetheless consider the Batson claim on the merits, a federal court will subsequently be barred from reviewing the merits of a petitioner‘s claim that the prosecution‘s use of a peremptory challenge violated the Constitution. Our Court today makes that pronouncement.
B. Subsequent Supreme Court Caselaw on Contemporaneous Objections in Batson Cases: Ford v. Georgia
Since Batson, the Supreme Court still has not indicated that a contemporaneous objection is a prerequisite to a federal Batson claim. To the contrary, in Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991),35 the Court reaffirmed “[t]he appropriateness in general of look-
In Batson itself, for example, we imposed no new procedural rules and declined either “to formulate particular procedures to be followed upon a defendant‘s timely objection to a prosecutor‘s challenges,” or to decide when an objection must be made to be timely. Instead, we recognized that local practices would indicate the proper deadlines in the contexts of the various procedures used to try criminal cases, and we left it to the trial courts, with their wide “variety of jury selection practices,” to implement Batson in the first instance.
Id. (citations omitted). The Court was explicit in stating that the issue of “when an objection must be made to be timely” is a matter of “local practice[]” rather than federal law. Moreover, it never indicated that, as a matter of federal law, a “general rule” of timeliness existed. Thus, the presence or absence of a contemporaneous objection is purely an issue of state procedural law. If a state court rejects a defendant‘s Batson claim as a matter of state law because it was not made within the time-frame specified by the state‘s procedural rules, and the federal court determines that the state rule functions as an independent and adequate basis for decision, then the federal court will be proce-
Notes
My colleagues respond that the Court‘s analysis of Georgia‘s state procedural rule in Ford is not directly controlling on whether there is a parallel federal rule. To be sure, it would be helpful if the Supreme Court had explicitly renounced the existence of a federal contemporaneous objection rule. Yet it cannot be ignored that the Court in Ford implicitly relied on the non-existence of such a federal analog. It determined that Georgia‘s procedural rule about the timing of a Batson objection did not bar consideration of the issue in federal court. If a federal contemporaneous objection rule did exist as an independent bar, one would expect the Court to have considered next whether Ford had satisfied that rule.
C. Caselaw of Our Court
Our Court has previously reached the merits of Batson claims on habeas review in cases where the petitioner did not make a timely objection during jury selection—signaling that our Circuit does not have a federal contemporaneous objection rule—and I see no reason why we should not afford Abu-Jamal the courtesy of our precedents. See, e.g., Wilson v. Beard, 426 F.3d 653, 659 (3d Cir.2005); Hardcastle v. Horn, 368 F.3d 246, 251 (3d Cir.2004); Riley v. Taylor, 277 F.3d 261, 273 (3d Cir.2001) (en banc).36
In Wilson, the defendant never made a Batson objection pre-trial, during trial, or even in his first post-conviction collateral proceeding. After the release of a videotape detailing the Philadelphia District Attorney‘s suggestions on how to keep blacks off juries,37 Wilson filed a second post-
Next, in Hardcastle the prosecutor had twenty available peremptory challenges, which she used to remove twelve of the fourteen black members of the jury venire. 368 F.3d at 251. The result was a jury that had only one black member. Id. Hardcastle‘s attorney did not object to the prosecutor‘s use of peremptory challenges during jury selection, but did subsequently move for a mistrial after voir dire—a motion that was denied.38 Id. On habeas review, we entertained the merits of Hardcastle‘s Batson claim without considering whether Batson required a contemporaneous objection to be made during jury selection.
Finally, in Riley the defendant was convicted by an all-white jury, and his counsel made no Batson objection at the time of jury selection. 277 F.3d at 271-72, 274. When Riley raised a Batson claim in his habeas petition, the District Court held that it was procedurally defaulted because it was never presented to the trial court. Id. at 274. When our Court considered the issue en banc, we held that the claim was not procedurally barred because the last state court to consider the claim did so on the merits. Id. at 274-75.
Our caselaw repeats to become a simple refrain: If a contemporaneous objection were required as a prerequisite to a federal Batson claim, we could not have reached the issue on the merits.39 Why we pick this case to depart from that reasoning I do not know. Accordingly, assuming that Abu-Jamal did not raise a timely objection, that would not be fatal to his federal Batson claim unless he violated a Pennsylvania state procedural rule that
D. The Failure to Object Contemporaneously to a Batson Violation Is a Matter of State Procedural Law
Rather than looking at this as a matter of federal constitutional law, we should treat the failure to lodge a contemporaneous objection as one of state procedural law. This approach accords with both Batson, in which the Supreme Court emphasized that trial courts were in the best position to address Batson‘s implementation, 476 U.S. at 99 n. 24, 106 S.Ct. 1712, and Ford, in which the Court noted that it was appropriate to “look[] to local rules for the law governing the timeliness of a constitutional claim.” 498 U.S. at 423, 111 S.Ct. 850. As I believe the presence or absence of a contemporaneous objection is an issue of state-law procedure and not a matter of federal constitutional law, I next consider whether Abu-Jamal procedurally defaulted under Pennsylvania law.
The United States Supreme Court has been unequivocal on the issue of procedural default: “If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available.” Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Here, the Pennsylvania Supreme Court considered the merits on both direct appeal and state collateral review under the Pennsylvania Post-Conviction Relief Act (PCRA). Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846, 849-850 (1989) (explaining that the Pennsylvania Courts often applied a relaxed waiver rule in capital cases, and then reaching the merits of Abu-Jamal‘s Batson claim); Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 114 (1998) (reaching the merits of Abu-Jamal‘s Batson claim).
My colleagues recognize this. See Maj. Op. 284-87. The District Court also recognized this and found no bar to federal consideration of the Batson claim on the merits. Abu-Jamal, 2001 WL 1609690, at * 104 (“Moreover, [the Batson claim] was adjudicated on the merits by the state courts.“).
Curiously, as to the issue of procedural default here, my colleagues and I agree. See Maj. Op. 287. (“Without a clear and express statement that the state court denied relief on independent state procedural grounds, we cannot find the claim procedurally defaulted.“). I query then why they would choose to come out now with a federal standard when that was not the law heretofore in our Circuit.
Because until now there has been no federal contemporaneous objection rule in our Circuit (in fact, our practice to date has been not to impose such a rule) and Abu-Jamal‘s claim is not procedurally barred under state law, I turn to the merits of his Batson claim.40
II. Prima Facie Case
When evaluating Abu-Jamal‘s Batson claim on the merits, both the Pennsylvania Courts on appeal and post-conviction relief review, and the District Court on habeas review, erroneously denied the claim based on what I believe is an incorrect analysis of the legal standards governing when a prima facie case is made.
Under the Antiterrorism and Effective Death Penalty Act (
the court identifies the correct governing rule from the Supreme Court‘s cases but unreasonably applies it to the facts of the particular case or if the state court either unreasonably extends a legal principle from the Supreme Court‘s precedent to a new context where it should not apply or unreasonably refuses to extend the principle to a new context where it should apply.
Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir.2003) (quoting Gattis v. Snyder, 278 F.3d 222, 234 (3d Cir.2002)). The state court‘s application must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). While decisions of the lower federal courts are not binding precedent for state supreme courts under
It is the unreasonableness prong with which we are concerned today. My colleagues conclude that it was not “objectively unreasonable” for the Pennsylvania Supreme Court “to find [that] Abu-Jamal had not established a prima facie case based on either a pattern of peremptory strikes or any other circumstances.” Maj. Op. 293-94. They further determine that “the record does not include evidence of the number or racial composition of the venire,” rendering “the record . . . fatally deficient to support a successful challenge to the Pennsylvania Supreme Court‘s decision finding no prima facie case under Batson.” Maj. Op. 292.
Despite the deferential standard of review, I believe that the Pennsylvania Supreme Court unreasonably applied Batson in finding that Abu-Jamal failed to satisfy his prima facie burden and, on that basis, denying the claim without conducting the next, required steps of the Batson inquiry. The evidence here points to the conclusion that there was a prima facie case. Moreover, that it is now impossible for a judge to engage in a more comprehensive consideration of the Batson challenge here (i.e., without complete data about the strike and exclusion rates,41 as well as the racial and
A. Establishing a Prima Facie Case Is a Light Burden
As pointed out in the majority opinion, Batson developed a burden-shifting framework to evaluate the constitutionality of peremptory challenges based on race: “First, the defendant must establish a prima facie case of purposeful discrimination. Second, if a prima facie case is found, the prosecution must articulate a race-neutral justification for the challenged strikes. Third, after considering both parties’ submissions, the trial court must determine whether the defendant has established purposeful discrimination.” Maj. Op. 288 (citing Batson, 476 U.S. at 96-98, 106 S.Ct. 1712; Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).
To establish a prima facie case under Batson‘s first prong is, in turn, also a three-part inquiry (though the second step of that inquiry is self-answering):
[First,] the defendant . . . must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant‘s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
Batson, 476 U.S. at 96, 106 S.Ct. 1712 (citations omitted); accord Johnson v. California, 545 U.S. 162, 169, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005).42
The burden of establishing a prima facie case is easily met. In lowering the standard for making out a prima facie case of discriminatory voir dire practice through the use of peremptory strikes, Batson pointed to the evidentiary framework for prima facie claims in
We should not, therefore, raise the burden higher than what the Supreme Court requires. See Sorto v. Herbert, 497 F.3d 163, 178 (2d Cir.2007) (Pooler, J., dissenting) (“[W]e do both defendants and ordinary citizens a disservice when we create unnecessary obstacles to [the assertion of a Batson claim].“).
B. A Single Improper Strike Is Enough
Batson was “designed to ensure that a State does not use peremptory challenges to strike any black juror because of his race.” 476 U.S. at 99 n. 22, 106 S.Ct. 1712 (emphasis added). Following suit, we have repeatedly said that a defendant can make out a prima facie case for jury-selection discrimination by showing that the prosecution struck a single juror because of race. Holloway v. Horn, 355 F.3d 707, 720 (3d Cir.2004) (“Consistent with [Batson] principle[s], courts have recognized that a prosecutor‘s purposeful discrimination in excluding even a single juror on account of race cannot be tolerated as consistent with the guarantee of equal protection under the law.” (citing Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir.1990))). In fact, in United States v. Clemons, 843 F.2d 741, 747 (3d Cir.1988), we explained that “[s]triking a single black juror could constitute a prima facie case even when blacks ultimately sit on the panel and even when valid reasons exist for striking other blacks.” Accord Snyder, 128 S.Ct. at 1208; Simmons v. Beyer, 44 F.3d 1160, 1167 (3d Cir.1995); United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.1994); United States v. Battle, 836 F.2d 1084, 1086 (8th Cir.1987).
Yet the majority focuses on the absence of information about the racial composition and total number of the venire, claiming that this statistical information—from which one can compute the exclusion rate—is necessary to assess whether an inference of discrimination can be discerned in Abu-Jamal‘s case. Such a focus is contrary to the nondiscrimination principle underpinning Batson, and it conflicts with our Court‘s precedents, in which we have held that there is no “magic number or percentage [necessary] to trigger a Batson inquiry,” and that ”Batson does not
C. All Relevant Circumstances Must Be Taken into Account
Not only is one instance of juror discrimination enough to make a prima facie showing, but courts must look at “all relevant circumstances” to determine whether they “give rise to an inference of discrimination.” Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. Batson provides a non-exhaustive list of factors. See id. at 97, 106 S.Ct. 1712 (“These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor‘s use of peremptory challenges create[ ] a prima facie case of discrimination against black jurors.“). One of these factors is whether a “‘pattern’ of strikes against black jurors . . . in the particular venire might give rise to an inference of discrimination.” Id. Another is “the prosecutor‘s questions and statements during voir dire examination and in exercising his challenges[, which] may support or refute an inference of discriminatory purpose.” Id. In addition to the two factors specifically articulated in Batson, our Court has explained that the following factors may be relevant to the analysis: “(1) the number of racial group members in the panel, (2) the nature of he crime,[45 and] (3) the race of the defendant and the victim.” Simmons, 44 F.3d at 1167; see also Clemons, 843 F.2d at 748. This list is not exhaustive, as “[o]ur discussion should not be construed as barring trial judges from addressing other facts and circumstances or as binding trial judges by our illustrative list.” Clemons, 843 F.2d at 748.
D. Consideration of the Relevant Factors Establishes a Prima Facie Case
It is with these factors in mind that I turn to the facts of Abu-Jamal‘s case developed to date. While there is a limited record in this case—after all, Abu-Jamal‘s trial took place before the Supreme Court had laid out the prima facie framework in Batson—we do have enough information before us from which to conclude that he established a prima facie case of racial discrimination in jury selection. First, Abu-Jamal is black, and therefore “a member of a cognizable racial group.” Batson, 476 U.S. at 96, 106 S.Ct. 1712. Additionally, we know that the prosecutor exercised peremptory challenges against black prospective jurors.46 Thus, Abu-
With regard to the second prong, Abu-Jamal is “entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.” Id. (internal quotation marks omitted). Thus, having satisfied the first two prongs of the prima facie case, we reach the point where I depart from my colleagues.
To meet the third and final prong of the prima facie case—and thus shift the burden to the Commonwealth to articulate race-neutral justifications for the challenged strikes—all Abu-Jamal needs to do is “show that these facts and other relevant circumstances raise an inference that the prosecutor . . . excluded the veniremen . . . on account of their race.” Id. Bear in mind that Abu-Jamal does not need to prove that the prosecutor was actually acting to strike jurors on account of their race; to the contrary, he only needs to “raise an inference” that discrimination was afoot.
We know that the prosecutor exercised 15 peremptory strikes, 10 of which were used to remove black venirepersons. PCRA Op., 1995 WL 1315980, at *103. That means that the “strike rate” for blacks was 66.67%. As the Supreme Court has noted, “[h]appenstance is unlikely to produce this disparity.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029 (“In this case [where 10 of 14 peremptory strikes were used against black venirepersons, resulting in a strike rate of 71.43% and an exclusion rate of 91%] the statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors.“).47 It is my belief that the 66.67% strike rate, without reference to the total venire, can stand on its own for the purpose of raising an inference of discrimination. See Batson, 476 U.S. at 97, 106 S.Ct. 1712.
My colleagues attempt to downplay the strike rate by saying that it is essentially meaningless without reference to the racial makeup of the venire as a whole. They
In Holloway, we emphasized that “requiring the presentation of [a record detailing the race of the venire] simply to move past the first [prima facie] stage in the Batson analysis places an undue burden upon the defendant.” Id. at 728. There we found that the strike rate—11 of 12 peremptory strikes against black persons—satisfied the prima facie burden despite the lack of contextual markers my colleagues now seek here.49 Id. at 729;50 see also Simmons, 44 F.3d at 1168.
Furthermore, in Hardcastle we also faced the problem of an undeveloped record. And yet we concluded (at least implicitly51) that a prima facie case existed by relying on the strike rate, where the prosecutor used 12 of her 20 strikes against black candidates for the jury.52 We remanded the case for an evidentiary hearing to allow the Commonwealth to offer race-neutral reasons and for a reexamination of the merits of Batson on steps two and three.
Inasmuch as decisions of the lower federal courts are illustrative of what is reasonable—and Brinson and Hardcastle are decisions of our own Court—they are instructive of the outcome in this case. Abu-Jamal made out a prima facie case, calling for the courts to go further to test whether racial discrimination tainted the makeup of the jury that decided his guilt, and the failure of the Pennsylvania Courts to recognize this was an unreasonable application of the law.
Yet even setting aside statistical calculations about the strike and exclusion rates, the other relevant factors in this case further demonstrate that Abu-Jamal has satisfied his prima facie burden. At the very least, my colleagues and the Pennsylvania Courts should have considered that this was a racially charged case, involving a black defendant and a white victim. See Simmons, 44 F.3d at 1168 (“The nature of the crime and its racial configuration . . . contribute significantly to [a] prima facie
My colleagues dispense with these considerations in a footnote, stating merely that “Abu-Jamal has not demonstrated that these allegations make the Pennsylvania Supreme Court‘s decision objectively unreasonable.” Maj. Op. 291 n. 17. Their cursory consideration of these critical factors mirrors that of the Pennsylvania Courts. I believe this misapplies Batson, for it fails to “consider all relevant circumstances” of our case.
I am mindful that, under
III. Conclusion
Prima facie means “[a]t first sight.” Black‘s Law Dictionary 1228 (8th ed.2004). I believe that Abu-Jamal presents a case that, at first sight, infers (i.e., suggests) a reasonable possibility that the prosecutor excluded potential black jurors because of race. This inference requires courts to look further. To move past the prima facie case is not to throw open the jailhouse doors and overturn Abu-Jamal‘s conviction. It is merely to take the next step in deciding whether race was impermissibly considered during jury selection in his case. Having determined that Abu-Jamal met his prima facie burden at step one, I would remand for the District Court to complete an analysis of the remaining steps of the Batson claim, starting at step two, where the burden shifts to the Commonwealth to “come forward with a neutral explanation for challenging black jurors.” Batson, 476 U.S. at 97, 106 S.Ct. 1712. If the Commonwealth does so, the Court should proceed to step three and assess whether the reason(s) given are valid or pretextual in determining, on the basis of the evidence presented, whether purposeful discrimination did occur. See id. at 98, 106 S.Ct. 1712.
No matter how guilty one may be, he or she is entitled to a fair and impartial trial by a jury of his or her peers. As Batson reminds us, “[t]he core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of . . . race.” Id. at 97-98, 106 S.Ct. 1712. I fear today that we weaken the effect of Batson by imposing a contemporaneous objection requirement where none was previously present in our Court‘s jurisprudence and by raising the low bar for a prima facie case of discrimination in jury selection to a height unattainable if enough time has passed such that original jury
Richard Eugene CAGLE, Petitioner-Appellant,
v.
Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina; Theodis Beck, Secretary, North Carolina Department of Corrections, Respondents-Appellees.
No. 07-6.
United States Court of Appeals, Fourth Circuit.
Argued: Jan. 29, 2008.
Decided: March 17, 2008.
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 [sic] the blacks from the low-income areas are less likely to convict. It‘s just—I understand it. It‘s [an] 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 [younger] black women: [I]n 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 . . . blacks, so they‘re downtrodden in two areas. . . . And so younger black women are difficult, I‘ve found. 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 [at a] 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 [a] 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 something up about why you did it. Write it down right then and there. . . . So sometimes under that line 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 are striking them, not for race. So that‘s how to pick a jury. Wilson, 426 F.3d at 656-58.
Notably absent from the Batson discussion of the prima facie case is any call for trial judges to seek the type of statistical accounting required by the Spence rule nor do we see how such an accounting fits within Batson‘s first step. A trial judge undoubtedly might find in a given case that a full accounting regarding the race of the venire and the jurors struck would be helpful at the third stage of the Batson analysis, after it has heard the prosecutor‘s explanation for the strikes and must “determine if the defendant has established purposeful discrimination.” But requiring the presentation of such a record simply to move past the first stage in the Batson analysis places an undue burden upon the defendant. 355 F.3d at 728 (citation omitted).