Lead Opinion
OPINION OF THE COURT
This petition for collateral review under 28 U.S.C. § 2254 came to us more than two decades after trial. In 1982, Mumia Abu-Jamal was convicted and sentenced to death in a Pennsylvania court for the murder of Philadelphia Police Officer Daniel Faulkner. Following denial of his appeals in state court, Abu-Jamal filed a petition for a writ of habeas corpus in federal district court. The District Court vacated his death sentence and granted a new penalty hearing, but denied all other relief, affirming the judgment of conviction. The Commonwealth of Pennsylvania appealed the order vacating the death penalty. Abu-Jamal appealed his conviction.
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,
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 Cho-bert, 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,
Abu-Jamal’s new counsel filed a Petition for Stay of Execution, a Petition for Recu-sal 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 eviden-tiary 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 evi-dentiary 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,
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,
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,
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,
On October 19, 2005, we granted the motion to expand the certificate of appeal-ability 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.
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,
A.
The Commonwealth contends AbuJamal’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 (28 U.S.C. § 2254) squarely raising the issue of whether a timely or contemporaneous objection is a prerequisite to a Batson claim, so we have not yet directly addressed the issue in any of our prior state habeas cases.
Although the Supreme Court has never defined timeliness for a Batson claim,
Batson permits a party to establish an equal protection violation based on peremptory strikes in a single trial, id. at 93-95,
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
The most recent guidance from the Supreme Court on Batson comes from Snyder v. Louisiana, — U.S. -,
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).
Other courts of appeals in state habeas corpus cases have found a failure to timely object bars consideration of a Batson claim.
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 Bat-son, 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.
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.,
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.,
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,
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,
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 Bat-son claim. The court only discussed waiver with respect to those claims not raised on direct appeal. See PCRA Appeal Op.,
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 28 U.S.C. § 2254(d)(1), which instructs us to determine whether the Pennsylvania Supreme Court’s decision
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,
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.
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.,
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,
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,
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,
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,
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,
In Medellin v. Dretke,
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 makeup of the jury pool, such numbers could indicate that the state discriminated against Anglos and females.
Id. at 278-79.
Here, Abu-Jamal contends the record facts demonstrate a “pattern of strikes against black jurors” in the venire.
There is no factual finding at any level of adjudication, nor evidence from which to
Under AEDPA’s deferential standard of review, the record is fatally deficient to support a successful challenge to the Pennsylvania Supreme Court’s decision finding no prima facie case under Batson. As noted, the record does not include evidence of the number or racial composition of the venire.
Although we have cited the importance of the venire’s racial composition, see, e.g., Clemons,
In Brinson v. Vaughn,
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.” 28 U.S.C. § 2254(d)(1). AEDPA creates “an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings,” and we are guided by the statute’s “binding [ ] directions to accord deference.” Uttecht,
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,
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,
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,
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,
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,
In granting a certifícate of appeala-bility 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,
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 ha-beas 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,
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,
A.
The Commonwealth contends Abu-Jamal did not exhaust the Mills claim as required by 28 U.S.C. § 2254(b)(1)(A), alleging Abu-Jamal only raised the claim in state court as one of ineffective assistance of counsel and based his argument only on the verdict form, not on the court’s instructions to the jury. A petitioner seeking relief under § 2254 must exhaust “the remedies available,” Werts v. Vaughn,
The Supreme Court decided Mills in 1988, while Abu-Jamal’s claim was on direct appeal to the Pennsylvania Supreme Court.
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.,
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.,
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.
Our review is limited to whether the Pennsylvania Supreme Court unreasonably applied Mills. See 28 U.S.C. § 2254(d)(1); Williams,
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 AEDPA standard of review, citing Zettlemoyer. The Pennsylvania Supreme Court affirmed the PCRA court’s denial of post-conviction relief on the Mills claim. PCRA Appeal Op.,
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,
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:
*301 All 12 jurors might agree that some mitigating circumstances were present, and even that those mitigating circumstances were significant enough to outweigh any aggravating circumstance found to exist. But unless all 12 could agree that the same mitigating circumstance was present, they would never be permitted to engage in the weighing process or any deliberation on the appropriateness of the death penalty.
Mills,
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,
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 eircumstance(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*302 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.,
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,
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.,
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,
We have examined similar instructions in previous cases and found Mills violations. See Albrecht,
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,
Notes
. A certificate of appealability was granted on claims 14, 16, and 29. The Commonwealth
. The Court in Batson held the discriminatory use of peremptory challenges during jury selection in a defendant’s trial violates equal protection. Id. at 89-93,
. We have addressed Batson claims where it does not appear a timely objection had been made at trial. See, e.g., Wilson v. Beard,
. Abu-Jamal contends that the Court in Ford v. Georgia,
In a pretrial motion, Ford objected to the use of peremptory challenges in a racially discriminatory manner. Ford,
The Court did not discuss, and had no reason to discuss, whether a contemporaneous objection was a prerequisite under Batson because Ford had previously raised an objection. Furthermore, the state conceded that the petitioner properly raised a Swain claim. Id. at 420,
. Despite a reduction in the quantum of proof necessary to establish a claim, "Batson did not change the nature of the violation recognized in Swain." Ford,
. The value of a prompt determination must not be understated. Peremptory challenges are often based on "subtle, intangible impressions,” McCrory,
. In Galarza v. Keane, the dissent noted in a different context:
In addition to allowing the trial court to act in the first instance, potentially correcting the error ..., timely objection provides a record from which appellate courts can better assess the trial court’s reasoning, discourages sandbagging and strategic behavior by trial counsel, and provides the prevailing party with notice of the objector's claims of error.... Batson plainly necessi-tales some form of objection: without some objection, the tripartite, burden-shifting framework established by the Court would never be triggered.
Additionally, in the related context of 28 U.S.C. § 2254(e)(2), Congress has expressed a strong preference for factual development in state court proceedings. The purpose of § 2254(e)(2) is "to ensure the prisoner undertakes his own diligent search for evidence.” Williams v. Taylor,
. Racial discrimination during voir dire harms not only the defendant, but also the excluded juror as well. Batson,
. In other contexts, several courts of appeals have held similarly. See Morning v. Zapata Protein (USA), Inc.,
. Our dissenting colleague points to a March 18, 1982 pretrial motion as evidence that Abu-Jamal arguably presented an objection before trial under the then-prevailing Swain standard. But the record demonstrates that Abu-Jamal filed a motion seeking to distribute questionnaires to all prospective jurors prior to their scheduled date for jury service. Transcript of March 18, 1982, at 11. The questionnaires would "not indicate that the case involves Mr. Jamal” and would be a "general survey” with questions about potential venirepersons' backgrounds and locations of residence. Transcript of March 18, 1982, at 14-18. Abu-Jamal’s counsel hoped that such a survey would assist his selection of a fair and impartial jury because "in addition to the questionnaire I will have the opportunity to send people to the neighborhood ..., to check to see how they live, what are their relationships to the criminal justice system and what hidden hostilities they have in the hidden recesses of their subconscious mind, what their childhood problems were that might allow them to be triggered by something in the courtroom.” Transcript of March 18, 1982, at 13, 18. Abu-Jamal’s motion to distribute a questionnaire to all prospective jurors is different from lodging a timely objection during the jury selection process.
. We have, however, recognized the evidentiary problems that occur when a timely objection has not been made. See Hardcastle v. Horn,
In Uttecht v. Brown, - U.S. -,
. In a subsequent discussion regarding Abu-Jamal's challenge to statements made during the prosecutor’s closing argument, the court stated:
It must be acknowledged that were this not a capital case, this claim of error would be summarily dismissed as having been waived. No objection was made at the time of trial, the issue was not addressed in post-verdict motions, and appellate counsel has not claimed that trial counsel’s ineffective assistance in this regard is a special circumstance justifying appellate review despite the waiver. Nevertheless, we will address it on the merits in light of "relaxation” of the waiver rule previously noted as being appropriate in capital cases.
Id. at 854.
Pennsylvania state courts have since disavowed application of the relaxed waiver rule, but, at the time of Abu-Jamal's state appeals, an "unforgiving waiver rule was not consistently and regularly applied.” Albrecht v. Horn,
. The PCRA court likely relied on 42 Pa. Cons.Stat. § 9544(a) ("[A]n issue has been previously litigated if: ... (2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue ....”) rather than § 9544(b) ("[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.”) because it applied the relaxed waiver rule throughout the opinion. See PCRA Op.,
. Under Pennsylvania law, to obtain relief on a claim of ineffective assistance of counsel, Abu-Jamal was required to demonstrate that: "(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of that counsel's deficient performance.” Commonwealth v. McGill,
. In a recent case, we came to the same conclusion through a related analysis. See Holland v. Horn,
Although the Pennsylvania Supreme Court later abrogated the relaxed waiver rule, Commonwealth v. Albrecht,
. In United States v. Clemons,
. Abu-Jamal makes other allegations to support his prima facie case, including: (1) Abu-Jamal is black and Faulkner was white; (2) Abu-Jamal is black and the prosecutor exercised peremptory strikes to remove black potential jurors; (3) Faulkner was a police officer, as were key witnesses; (4) the prosecutor’s questions and statements during voir dire; and (5) a culture of discrimination in the Philadelphia District Attorney’s Office. Abu-Jamal has not demonstrated that these allegations make the Pennsylvania Supreme Court's decision objectively unreasonable.
. Abu-Jamal contends the prosecutor had the opportunity to strike thirty-nine venireper-sons, of which fourteen were allegedly black, but he does not cite any record support for these numbers. We see no record support for these numbers.
. Abu-Jamal’s failure to take the opportunity to elicit the prosecutor’s testimony is noteworthy considering the absence of a developed record to support a prima facie case.
. In Clemons, a federal criminal case on direct appeal, we noted the number of racial group members in the venire is a relevant factor a trial judge could consider when assessing a prima facie case. But we did not bar trial judges from considering other circumstances, noting that although "[situations may arise where trial judges find it relevant to examine other factors, such as the percentage of the 'cognizable racial group' in the jury pool, or the racial composition of the district ..., [w]e do not envision such inquiries as mandatory.” Clemons,
. Abu-Jamal cites Holloway v. Horn,
Additionally, Holloway is distinguishable on the facts. In Holloway, we found a prima facie case based primarily on the prosecution’s pattern of strikes. Id. at 722. The record demonstrated that "Holloway moved for a mistrial after the prosecutor had used seven of eight peremptory strikes against African-Americans; the Commonwealth ultimately used eleven of twelve strikes in that manner.” Id. We also considered in Holloway the difference in race of the officer who took Holloway’s custodial statement, who was white and on whose testimony and perceived credibility "Holloway’s defense would rise or fall,” and the defendant and victim, both black. Holloway,
In Hardcastle, unlike in this case, the exclusion rate was known.
. Abu-Jamal relies on Simmons v. Beyer,
. The Pennsylvania Supreme Court’s decision was not contrary to Supreme Court precedent. Because the court identified and applied the correct legal standard, Batson, it did not apply "a rule that contradicts the governing law set forth” by the Supreme Court, nor are the facts here “materially indistinguishable” from the facts in Batson. Williams,
. Caldwell also suggests that the truth or falsity of a prosecutor's comments may be an essential factor in determining whether they merit vacating a death sentence.
. Even though error in state collateral proceedings cannot be grounds for federal habe-as relief, the error "may affect the deference we owe the court’s findings under § 2254(d) and 2254(e)(1).” Lambert,
. We need not conduct retroactivity analysis under Teague v. Lane,
. As noted, the Pennsylvania Supreme Court applied a relaxed waiver rule to all issues arising in a death penalty case. Since a strict waiver rule was not firmly established and regularly followed, state law procedural grounds are not an adequate basis to support the judgment and cannot be a ground for procedural default.
. As noted, Abu-Jamal did not raise a Mills claim at trial or on direct review to the Pennsylvania Supreme Court, but he first raised it on PCRA review.
. Of course, if the facts were materially indistinguishable then the Pennsylvania Supreme Court’s conclusion would be "contrary to" Mills.
. The District Court also relied upon Banks v. Horn,
Concurrence Opinion
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,
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,
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”
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 bar
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 “discharging] the venire and selecting] a new jury from a panel not previously associated with the case or ... disallowing] the discriminatory challenges and resuming] selection with the improperly challenged jurors reinstated on the venire.” Batson,
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,
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,
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
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,
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,
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.
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.
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.
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,
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,
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,
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.
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 (AEDPA), which governs our review of habeas cases, we must
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,
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 (ie., without complete data about the strike and exclusion rates,
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,
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,
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 Title VII discrimination cases. Batson,
We should not, therefore, raise the burden higher than what the Supreme Court requires. See Sorto v. Herbert,
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.”
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 Bat-son 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,
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,
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. Commonwealth v. Abu-Jamal, No. 1357,
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.
Furthermore, in Hardcastle we also faced the problem of an underdeveloped record. And yet we concluded (at least implicitly
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,
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 AEDPA, our role is to determine whether “[t]he state court’s application of clearly established law [was] objectively unreasonable.” Lockyer,
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 imper-missibly 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,
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,
. I agree with my colleagues on all other issues save Section VLB of the majority opinion. There I concur in the judgment that a violation of Mills v. Maryland,
. My colleagues, regrettably, do not define what in their opinion is a “timely” objection for the purpose of preserving a Batson claim.
. It is well-established that a federal court will not consider " ‘a question of federal law decided by a state court if the decision of that [state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Lambrix v. Singletary,
. This view is confirmed by the Supreme Court’s opinion in Ford v. Georgia, where it noted that "[i]n Batson ... we ... declined ... to decide when an objection must be made to be timely. Instead, we recognized that local practices would indicate the proper deadlines....”
. Ford concerned the adequacy of a new state procedural rule that required Batson claims to be raised after the jury was selected but before jurors were sworn. Ford had made his objection before, but not at, jury selection, and the State of Georgia argued that it was therefore untimely under the rule. Ford,
Interestingly, it is at least arguable that Abu-Jamal presented an objection before trial in much the same way that Ford did. On March 18, 1982, before jury selection or trial had started, Abu-Jamal filed a pretrial motion seeking to distribute questionnaires to the potential members of his jury venire pool in an effort to ensure that he was tried by “a fair and impartial jury.” Transcript of March 18, 1982, at 11-13. At the motion hearing, the following colloquy took place between Abu-Jamal’s counsel and the Court:
[Defense counsel:] We — as Your Honor well knows — we have twenty peremptory challenges in a criminal case. It has been the custom and the tradition of the District Attorney's Office to strike each and every black juror that comes up peremptorily. It has been my experience since I have been practicing law, as well as the experience of the defense bar, ... that that occurs.
The Court: The district attorney says he does not agree with that statement.
[Defense counsel:] ... I am not saying, Your Honor, that that questionnaire or any other procedure that Your Honor might approve would in fact insure any black representation on the jury. What I am saying is that even if it’s an all white jury, Your Honor, I want to be certain that it's a fair and impartial jury.
Id. at 12-13.
The District Court did not acknowledge this portion of the record. See Abu-Jamal v. Horn, No. 99-5089,
. In creating the contemporaneous objection requirement, my colleagues cite cases from other Courts of Appeals that treat the failure to lodge a contemporaneous objection as a constitutional bar to and/or waiver of the claim. See, e.g., McCrory,
. As explained in Wilson, the facts surrounding the videotape are as follows:
In 1997, Jack McMahon, the Assistant District Attorney who prosecuted Wilson's first case, won the Republican nomination to challenge incumbent District Attorney Lynne Abraham. On March 31, 1997, eleven days after the primary election, Abraham released a videotape from the late 1980s which showed McMahon giving a training session on jury selection to other prosecutors in the District Attorney’s Office. In the tape, McMahon makes a number of highly inflammatory comments implying that he regularly seeks to keep qualified African-Americans from serving on juries. Since these comments are central to [Wilson's] appeal, we will quote from them at length.
McMahon began his presentation by reviewing the procedures followed by Pennsylvania courts in selecting juries. He then proceeded to discuss his views of the goals a prosecutor should have in mind in selecting a jury:
The case law says that the object of getting a jury is to get — I wrote it down. I looked in the cases. I had to look this up because I didn't know this was the purpose of a jury. "Voir dire is to get a competent, fair, and impartial jury.” Well, that's ridiculous. You’re not trying to get that. You're — both sides are trying to get the jury*309 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,
*310 The videotape is noteworthy because it prompted Wilson to raise his Batson claim despite the absence of a contemporaneous objection. But it is further significant because it gives a view of the culture of the Philadelphia District Attorney's Office in the 1980s.
The District Court in Abu-Jamal’s case found the tape to be “irrelevant” because it was produced five years after his trial and because he was prosecuted by someone other than McMahon. Abu-Jamal,2001 WL 1609690 , at * 109. However, I find it difficult to believe that the culture in the Philadelphia D.A.’s Office was any better five years before the training video was made. Indeed, given that Abu-Jamal’s trial preceded Batson, it is not far-fetched to argue that the culture of discrimination was even worse. Moreover, to the extent that this video was of a training session in the D.A.'s Office — a training session, apparently, on how to deal with the Supreme Court's pronouncement in Batson— the obvious question is whether the sentiments expressed were limited specifically to one prosecutor or whether they existed throughout the office.
. In their discussion of the motion for a mistrial in Hardcastle, my colleagues appear to intimate that such a motion could suffice as a timely objection under their newly created contemporaneous objection rule. Maj. Op. 280 n. 3. Given their belief that the Court in Batson “envisioned an objection raised during the jury selection process,” Maj. Op. 280-81 (internal quotation marks omitted), I fail to see how they could construe Hardcastle’s motion — made after voir dire was completed and the jury was empaneled, but prior to trial — as satisfying their objection requirement. Thus, not only is our Court now imposing an additional ¡imitation on a criminal defendant's ability to raise a Batson claim, it is declining to set out the parameters of that new rule.
. My colleagues cite one case in which we held on direct appeal that a petitioner had waived his Batson claim by failing to make a contemporaneous objection. See Gov't of the Virgin Islands v. Forte,
. As noted, I find it curious that, while my colleagues "believe a timely objection is required to preserve [the Batson] issue on appeal,” Maj. Op. 284, they nevertheless continue on to the merits of Abu-Jamal's Batson claim.
. As the majority explains, the "strike rate” is calculated "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.” Maj. Op. 290. By contrast, the
. In Powers v. Ohio,
. In Johnson, the Court explained that it "did not intend [Batson's ] 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."
. In this context, were we to summarize Batson in layperson's terms, a defendant needs to raise, based on whatever evidence exists, a reasonable possibility that the prosecutor intended to exclude from the jury but one person because of race. If so, the prosecutor can counter by presenting race-neutral reason(s) for excluding the person(s) identified. That done, a Court must evaluate the evidence and determine whether purposeful discrimination did occur.
. As an example of how this plays out, in Riley we made special mention that the crime gave rise to a capital case: “We cannot avoid noting that Batson was not a death penalty case. This is. If the State failed to accord Riley his constitutional right to a jury selected on a race-neutral basis, we must not shirk to so hold.” 277 E.3d at 287. The Supreme Court has repeatedly emphasized the need for heightened safeguards in capital cases because "death is different” in harshness and finality from any other punishment. See, e.g., Ring v. Arizona,
. The fact that a prosecutor does not use all of his strikes against blacks or that the actual jury picked has some black members (as here, where there were two black jurors in the end) does not undermine the prima facie case. See Brinson v. Vaughn,
Moreover, the defense’s striking putative black jurors is not a reason to defeat a Batson claim. Brinson,
. In Miller-El, the Supreme Court had available both the strike rate and the racial composition of the venire, which allowed it to calculate the exclusion rate. Thus, the Court could determine that the prosecution used 10 of its 14 strikes (a 71.43% strike rate) to strike 91% of the eligible black venire pool.
. My colleagues correctly assert that Abu-Jamal had the burden of establishing his prima facie case. They note — as did the Court of Common Pleas on PCRA review and the District Court — that Abu-Jamal had the opportunity at a 1995 PCRA hearing to take testimony from the trial prosecutor, Joseph McGill, but chose not to do so. Maj. Op. 292; PCRA Op.,
. My colleagues assert that Holloway is distinguishable because the Court did not apply AEDPA's deferential standard of review, finding instead that the pre-AEDPA standard of de novo review was appropriate. Maj. Op. 292 n. 21. However, our Court “note[d] that relief would be warranted even if our analysis were confined by the requirements of AEDPA, as the Pennsylvania Supreme Court's PCRA decision was 'contrary to' and an 'unreasonable application of' the Batson standard.” Holloway,
.In Holloway, we specifically rejected the requirement that a petitioner develop a complete record of the jury venire when we rejected Pennsylvania's so-called Spence rule. In Commonwealth v. Spence, the Pennsylvania Supreme Court affirmed the denial of a capital defendant’s Batson challenge on the ground that he failed to make an adequate record to permit meaningful review of the trial court's failure to find a prima facie case.
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.
. I say "implicitly” because we read the Pennsylvania Supreme Court’s opinion as conceding that the petitioner had satisfied his prima facie burden under Batson's first step. Hardcastle,
. When our Court considered Hardcastle, we knew that "the prosecutor used her peremptory strikes, of which she had a total of twenty, to remove twelve of the fourteen African-American members of the venire.”
. In Simmons, we had no record of the total venire, yet we nevertheless found that the defendant had established a prima facie case based on "[t]he combination of Simmons’ race, the prosecution's exclusion of at least one potential African American juror, and the circumstances surrounding the crime,” which involved "the murder and robbery of an elderly [C]aucasian physician by a young African American man.”