MEMORANDUM OPINION AND ORDER
BACKGROUND
This case has been presented to the Court on a Petition for Writ of Habeas Corpus. The Court will briefly set out the procedural history of this case. The facts of this case are set forth in
Edwards v. State,
After Batson was decided, the Petitioner moved for summary judgment on the basis of a deposition of District Attorney Ed Peters. This Court denied the Motion for Summary Judgment in an Order dated January 21, 1987. An evidentiary hearing was scheduled for May 26, 1987, on the sole issue of whether the Petitioner could prove the prosecutor systematically exercised peremptory strikes in a manner which excluded black persons from serving on juries in criminal cases in violation of the Fourteenth Amendment.
Thе Court noted at the outset of the evidentiary hearing that this case is to be controlled by
Swain v. Alabama,
The Court now sets forth its Findings of Fact and Conclusions of Law as required by Rule 52 of the Federal Rules of Civil Procedure.
FINDINGS OF FACT
The Petitioner Leo Edwards was tried by an all-white jury in the First Judicial District for the Seventh Circuit Court District of Mississippi. The Petitioner was convicted of capital murder and sentenced to death.
The prosecuting attorney for the Seventh Circuit Court District of Mississippi is Ed Peters. Peters has served as the District Attorney since 1972. The First Judicial District of the Seventh Circuit Court District is composed primarily of the portion of Hinds County surrounding and including the City of Jackson. The Second Judicial District encompasses the remaining part of Hinds County, Mississippi. The Seventh Circuit also includes all of Yazoo County, Mississippi.
In a capital case in Mississippi, each party is allowed twelve peremptory strikes. In non-capital cases each party is allowed only six peremptory challenges. The jury selection procedure requires prospective jurors to be first presented to the state so that the prоsecuting attorney must either accept the juror or exercise a peremptory challenge. The state is required to tender *1376 a full panel of twelve jurors to the defendant. The defendant’s attorney then accepts or peremptorily challenges the jurors tendered. The state is then tendered enough new jurors to refill the panel and must either accept or peremptorily challenge the jurors presented until it refills the panel or exhausts its challenges. Thereupon, the defendant either accepts or peremptorily challenges the jurors tendered by the state in the second round. This process continues until a full panel of twelve is seated either because each juror has been accepted by both sides or because one or both sides has no challenges remaining. Accordingly, since the state is required to pass first on each juror, the acceptance by the state of a black juror does not necessarily result in that juror’s becoming a member of the jury unless the defendant thereafter accepts that juror or has no challenges remaining.
The issue which has been presented to the Court arose in this manner. In this trial in 1981, seven of the eight black persons appearing on Edwards’ jury venire after challenges for cause were struck by use of the state’s peremptory challenges. The remaining Black, a security officer, was challenged by Petitioner Edwards. Edwards then objected at trial to the all-white petit jury composition based on
Swain v. Alabama,
The interview and deposition of Peters led to further discovery regarding this issue which revealed that the district attorney’s office had kept records in at leаst 242 criminal cases with complete jury lists, and that Judge William F. Coleman, the circuit court judge who handled the majority of the criminal trials in the First Judicial District of the Seventh Circuit Court District, kept his own records in at least 76 other cases with complete jury lists. Stipulations of the parties reflect that data in these jury selection records of the district attorney’s office and of Judge Coleman were kept in case files and include the names of potential jurors, the race of potential jurors, the peremptory strikes by the prosecution, the peremptory strikes by the defense, and the racial composition of the jury selected in each of those cases. The parties jointly submitted into evidence summary sheets indicating the circuit court case number, the name of the prosecutor, the name and race of the defendant, the numbers of black persons and white persons struck peremptorily by the prosecution and by the defense attorney, and the racial composition of the jury in each case in which complete records were kept. Juror list sheets kept by the district attorney’s office were also introduced into evidence (Exhibit J-l) which include the names of all potential jurors on the venire, the race of each venireman, notations concerning the veniremen, the order in which they were reached, successful challenges for cause, peremptory challenges by both sides, and those persons finally accepted for each petit jury. The experts used in this hearing computed from this data the specific percentages of Blacks peremptorily challenged and percentages of Blacks serving on juries for the *1377 period of time covered by the data. Although not urged in their arguments, the parties also presented evidence of certain census figures to show racial composition of the populace. The 1980 census figures for the City of Jackson show that the voting age population according to race was 57.72% white and 41.64% black. Voter registration, from which jury lists are drawn, was 64.13% white and 33.94% black.
The two experts, Dr. Allen Lichtman for the Petitioner and Dr. C.K. Rowland for the State, analyzed the data. The experts basically agreed on the statistical results, but drew different conclusions as to the meanings of these statistics. The statistics agreed to by the experts are as follows:
A. Venire, pre-peremptory strike pool
Total - 8591 jurors (100%)
White - 5355 jurors (62.3%)
Black - 3236 jurors (37.7%)
B. Jury Composition — All cases studied
Total - 3814, Jurors (100%)
White - 2726 Jurors (71.4%)
Black - 1090 Jurors (28.6%)
C. Jury Composition — Capital Crimes
Total - 1932 Jurors (100%)
White - 1440 Jurors (74.5%)
Black - 492 Jurors (25.5%)
D. Jury Composition — Black Defendants
Total - 2926 Jurors (100%)
White - 2114 Jurors (72.2%)
Black - 812 Jurors (27.8%)
E. Jury Composition — White Defendants
Total - 624 Jurors (100%)
White - 426 Jurors (68.3%)
Black - 198 Jurors (31.7%)
F. Jury Composition — D. A. Peters as Prose-
cutor
Total - 732 Jurors (100%)
White - 524 Jurors (71.6%)
Black - 208 Jurors (28.4%)
PROSECUTORS’ PEREMPTORY STRIKES
BY RACE
G. Total Prosecutor’s strikes
Total - 2397 (100%)
White - 496 (20.7%)
Black - 1901 (79.3%)
H. Prosecutor’s strikes in capital crimes
Total - 1575 (100%)
White - 359 (22.8%)
Black - 1216 (77.6%)
I. Prosecutor’s strikes with Black Defendants
Total - 1851 (100%)
White - 343 (18.5%)
Black - 1508 (81.5%)
J. Prosecutor’s strikes with White Defendants
Total - 388 (100%)
White - 125 (32.2%)
Black - 263 (67.8%) ,
K. Prosecutor’s strikes with D.A. Peters as Prosecutor
Total - 574 (100%)
White - 135 (23.5%)
Black - 439 (76.5%)
The State also presented figures for the percentages of white persons struck by defense attorneys and the percentage of “foregone opportunities” to strike Blacks, meaning the statistical number for which the prosecution had peremptory challenges available to strike Blacks but chose not to do so.
Total Defense Strikes
Total - 2,353 (100%)
White - 2,079 (87.98%)
Black - 284 (12.01%)
Percentage of Foregone Opportunities to Strike
Blacks by prosecution - 24%
Whites by defense - 22%
Although the data includes separate information as to several assistant district attorneys as well as information as to the district attorney himself, this Court has determined to inquire primarily into the personal practices of the lead prosecutor of this case, District Attorney Ed Peters. It is evident that Peters did not have a policy in his office of telling other assistant district attorneys how to select jurors. Even if this Court were to consider all the available statistics before it, the differences between District Attorney Peters and all other prosecutors is not substantial and would not change the ultimate result as reached *1378 by this Court. Further, this Court has considered only the statistics of the First Judicial District of the Seventh Circuit Court District rather than of the District as a whole. The State criticized the statistical sample from this judicial district as being non-representative, but the sample consisted of approximately one-half of all the cases tried. Therefore, the Court finds the sample reаsonably accurate for statistical analysis because of its size. The Court notes at this point that no other court has ever been presented with as much statistical data in a Swain case as has been presented to this Court.
The Court will state generally the positions of the two experts as presented in their reports and in their testimony at the evidentiary hearing. Dr. Allen Lichtman testified for the Petitioner that nearly 80% of all peremptory challenges exercised by prosecutors in the First Judicial District were exercised against Blacks. He testified that this was statistically significant and not by random chance, and therefore he concluded it established that the prosecutors purposefully excluded as many Blacks as possible. The data indicated that prosecutors consistently used their peremptory strikes to exclude Blacks in much greater proportion than their representation among potential jurors. The Court notes that statistics as reported by the parties reveal that District Attorney Ed Peters has a slightly lower average of peremptory challenges against Blacks than all other prosecutors taken as a whole: Peters exercised 76.5% of his peremptory challenges against Blacks as compared to the total number of prosecutors exercising 79.3% of the peremptory challenges against Blacks. In his report and testimony Dr. Lichtman spoke of “depressing” the percentage or proportion of black persons actually serving on juries by use of the peremptory challenges. The data revealed an actual or mean difference in the percentage of Blacks on the venire panel 1 and the percentage of Blacks serving on juries was 9% for all prosecutors. The experts did not compute an aggregate percentage for District Attorney Peters as lead prosecutor, but based on the data from the district attorneys’ office and from Judge Coleman the Court finds that the difference in the percentage of Blacks on the venire panel and the percentage of Blacks serving on juries in all criminal cases was less than 10% for Peters as the prosecutor. For capital cases the difference was roughly 12% between the percentage of Blacks on the venire and Blacks actually serving on capital juries.
The two hypotheses that Dr. Lichtman formed by which to test the data were that the peremptory challenges used to strike Blacks were from a chance or random deviation or were from purposeful exclusion of Blacks. Dr. Lichtman testified that statistical tests demonstrate that the prosecutors’ treatment of black and white veniremen cannot be attributed to random deviations from a race-neutral process of juror selection sinсe he found a statistical significance factor of .000001 which corresponds to a 1 in 1-million probability that the event occurred by chance. Lichtman admitted in his report at pages 7-8 that it is possible that prosecutors may be using a race-neutral process of exclusion and that the distributions reported in Tables 1 and 2 derive from chance or random factors. But Dr. Lichtman further stated that for a very large number of cases, a race-neutral process of peremptory strikes by prosecutors should produce distribution of results in which the prosecutors strike Blacks in greater proportion than their representation among veniremen about as often as they peremptorily strike Blacks in lesser proportion than their representation among veniremen.
Dr. C.K. Rowland was presented as an expert by the State. Dr. Rowland interpreted the same data from the District Attorney’s office and from Judgе Coleman to show that 29% of all jurors seated in the cases covered by this data were Blacks. Dr. Rowland contends that this shows a substantial representation of Blacks on pet- *1379 it juries, and that this representation shows that the prosecutors were not exercising the peremptory challenges in a discriminatory manner against Blacks. Rowland criticized Lichtman for trying to prove a qualitative hypothesis by use of only quantitative data.
Rowland looked also at the qualitative information contained on the juror list sheets. Rowland concluded that information as contained in these juror information sheets revealed other factors, such as age, stability, work experience and attitude toward the prosecution, which were just as prevalent as the race factor. Despite his mention of race-neutral factors, Dr. Licht-man did not consider that black veniremen could have been excluded bеcause of these race-neutral factors. The statistics as found by Dr. Lichtman would show a deliberate effort to eliminate jurors having these race-neutral reasons for challenge by the prosecution but these statistics would not necessarily show a purposeful exclusion of Blacks solely because of their race. Dr. Rowland testified to the fallacy of Lichtman’s hypotheses on this basis. Rowland’s criticism of Lichtman’s hypotheses and analysis was recognized in
United States v. Childress,
Dr. Rowland focused on the percentage of Blacks that do serve on juries, 29%, which closely approximates the percentage of Blacks on the venire panel after challenges for cause, 38%. Rowland thus found that Blacks were not “disenfranchised” from serving on juries. Further, Rowland found that the prosecutor often did not challenge Blacks presented to him even though he had peremptory challenges remaining but instead exercised them against white jurors. Rowland termed these “foregone opportunities,” and his analysis revealed an average number of 1.9 foregone opportunities to strike black jurors per case. When Ed Peters served as lead counsel, Rowland’s analysis indicated that Peters had foregone an average of 2.35 opportunities per case to peremptorily challenge Blacks. Lichtman objected to Rowland’s analysis of “foregone opportunities,” yet Lichtman attempted a similar analysis in Tables 15 and 16 of his report. Lichtman’s results showed that prosecutors had a slightly higher number of foregone opportunities to strike black veniremen.
Based on the statistics and analyses presented to the Court, the Court finds that prosecutors use 80% of their peremptory challenges against black veniremen presented to them after challenges for cause, and defense attorneys use 88% of their peremptory challenges against white veniremen after challenges for cause. Obviously, there is a presumption in the minds of attorneys for both the state and for defendants that Whites are partial to the prosecution and Blacks are partial to the defense.
District Attorney Ed Peters consistently takes the position in his deposition and in his live testimony that he has a philosophy that on the average Blacks are less law enfоrcement oriented than Whites. He finds this is caused by low socio-economic conditions of Blacks in this area as well as a history of oppression. He believes this is more true in the First Judicial District than in the Second Judicial District of the Seventh Circuit Court District because of differences in urban and rural backgrounds. Upon cross-examination the District Attorney presented a candid discussion of the mental processes he uses in selection of juries. He testified that he will and has taken Blacks as jurors in all types of cases, but that he excludes some Blacks on an individual basis for such things as beards, civil rights activities, the fact that members of the juror’s family have been prosecuted, or their expressed reluctance to judge solely on circumstantial evidence. Peters testified that all other factors being equal, if he has to choose between a black venireman and a white venireman and there is no *1380 specific reason to exclude either, he excludes the Black.
District Attorney Ed Pеters has been in office for 15 years, and it is unchallenged in testimony that he was among the first district attorneys to hire black assistants in Mississippi, he has other black employees in his office, and he used courtesy titles towards Blacks during trials at a time in the history of this State when that was not normally done. Accordingly, there is no evidence that Peters himself is a racist. Although statements Peters has made about Blacks in trials may appear racist, they have been lifted out of context. Peters has expressed these statements freely and openly when his trial tactics have been questioned. Peters testified his experience has shown that in the First Judicial District Blacks tend to vote for defendants in many cases and he has had a large number of hung juries caused by black jurors voting for the defense. He testified that potential jurors in the Second Judicial District may have different attitudes, whereby he finds that more Blacks may be prosecution oriented in that judicial district. Peters also testified that it is his opinion that Blacks are more opposed to the death penalty despite the availability of a challenge under
Witherspoon v. Illinois,
When questioned as to the specific strikes in Leo Edwards’ trial, Peters was presented with juror sheets he and an assistant district attorney used to make notations during voir dire. These jury list sheets were introduced into evidence as Exhibits J-5 and J-6 jointly by the parties. The testimony and exhibits revealed that Peters peremptorily struck one black juror because she expressed conscientious scrap-ples against imposing the death penalty. Judge Coleman had not excluded her for cause under the Witherspoon analysis since she stated she could vote guilty but could not follow the law and consider the death penalty. Since this was a death penalty case, Peters used one of his peremptory challenges to exclude her. Peters also excluded a white potential juror for the same reason of conscientious scrupples against imposing the death penalty. Testimony and the exhibits also revealed that Peters struck three Blacks on the basis that one was a nurse and two were nurses’ assistants. He testified on the witness stand and in his deposition that he customarily excludes all health professionals and social workers who are in the profession of saving and rehabilitating persons regardless of the potential jurors’ race because of their propensity to be sympathetic to anyone in trouble. The district attorney and thе assistant district attorney customarily note on the juror list sheets when a juror indicates that he would not be persuaded and could not convict if the state’s case relies on circumstantial evidence. In addition to the previously mentioned challenges, Peters struck one Black and two Whites who had the notations that they would disregard all circumstantial evidence. Thus, the district attorney articulated specific, race-neutral reasons for challenging five of the seven black jurors peremptorily challenged by the prosecution. No specific reason was presented as to why the other two black jurors were peremptorily challenged.
CONCLUSIONS OF LAW
The issue of systematic exclusion of Blacks by use of the prosecutor’s peremptory challenges has been presented to this Court under a claim of a violation of Petitioner Leo Edwards’ Fourteenth Amendment right of equal protection. The Unitеd States Supreme Court has held that “[although a Negro defendant is not entitled to a jury containing members of his race, a State’s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the equal protection of laws.”
Swain v. Alabama,
Although Swain and its progeny never defined the precise Fourteenth Amendment right of the individual defendant, Equal Protection application has finally been defined by the Supreme Court in Batson v. Kentucky.
But the defendant does have the right to be tried by a jury whose members are selected pursuant to non-discriminatory criteria, [citations omitted] The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, ... or on the false assumption that members of his race as a group are not qualified to serve as jurors [citations omitted].
Purposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure. “The very idea of a jury is a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” Strauder [v. State of West Virginia] [100 U.S. (10 Otto)] at 308,25 L.Ed. 664 [1880]; see Carter v. Jury Commission of Greene County,396 U.S. 320 , 330,24 L.Ed.2d 549 ,90 S.Ct. 518 [523] (1970). The petit jury has occupied a central position in our system of justice by safe-guarding a person accused of crime against the arbitrary exerсise of power by prosecutor or judge. Duncan v. Louisiana,391 U.S. 145 , 156,20 L.Ed.2d 491 ,88 S.Ct. 1444 [1451] (1968). Those on the venire must be “indifferently chosen,” to secure the defendant’s rights under the Fourteenth Amendment to “protection of life and liberty against race or color prejudice.” Strauder, [100 U.S. (10 Otto)] at 309,25 L.Ed. 664 .
Batson,
As previously stated, the issue of this case is controlled by
Swain v. Alabama,
The Fifth Circuit has stated that in order to require an examination of the prosecutor’s exercise of peremptory challenges, a defendant must show that a prosecutor has used the challenges to cause a systematic exclusion of Blacks from petit juries.
United States v. Durham,
[W]hen the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance, [citation omitted] In these circumstances, giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purposes of the peremptory challenges are being perverted. If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrealted to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify.
Swain,
The United States Supreme Court thus established that to prove a prima facie case the petitioner had to present evidence of the prosecutor’s use of peremptory challenges over a period of time.
Id.
at 227,
The Eleventh Circuit has also addressed the problem of systematic exclusion. In
Willis v. Zant,
At his evidentiary hearing, petitioner must prove on specific facts that [the prosecutor] had a systematic and intentional practice of excluding blacks from traverse juries in criminal trials through the exercise of peremptory challenges, and that this practice continued unabated in petitioner’s trial. The exclusion must have occurred “in case after case, whatever the circumstances, whatever the crime and whoever the defendant may be.” Swain,380 U.S. at 223 ,85 S.Ct. at 837 . Petitioner is not required to show that the prosecutor always struck every black venireman offered to him, Pearson,448 F.2d at 1217 , but the facts must manifestly show an intent on the part of the prosecutor to disenfranchise blacks from traverse juries in criminal trials in his circuit, “to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population.” Swain,380 U.S. at 224 ,83 S.Ct. at 838 . The prosecutor’s *1383 use of peremptory challenges in only a few trials is clearly insufficient to state a prima facie case, as would be a pattern of exclusion which occurred for only a few weeks. In short, petitioner must marshal enough historical proof to overcome the presumption of propriety in which Swain clothes peremptory challenges, and thereby show [the prosecutor’s] intent to discriminate invidiously.
If petitioner can prove his prima facie case, the veil insulating prosecutorial discretion will be rent. The prosecutor, however, may rebut petitioner’s prima facie case in two ways. First, he may make “a showing that racially neutral selection procedures have produced the [historical and systematic] disparity.” [citations omitted] ...
A second way in which the prosecutor may rebut a prima facie case under Swain is not to show racially neutral reasons for the systematic disparity, but rather to show neutral reasons for the striking of all of the blacks in petitioner’s trial itself.
Willis,
Most cases involving a
Swain
claim have not proceeded to the point of estаblishing a prima facie case because there was not sufficient proof of the prosecutor’s practice of exercising peremptory challenges over a period of time.
E.g. United States v. Tolliver,
The Petitioner must establish a pri-ma facie case under Swain by presenting evidence or testimony 1) of a history of systematic exclusion, and 2) that this systematic exclusion continued into the present case. The Court has found that thе Petitioner’s data shows the prosecutor used nearly 80% of his peremptory challenges to strike Blacks and there were no Blacks serving on the jury in Edwards’ trial. This evidence coupled with the statements of the prosecutor of his “philosophy” establishes that the Petitioner has presented a prima facie case sufficient to overcome the presumption of propriety of the prosecutor’s peremptory challenges under Swain.
Upon this finding, the burden shifts to the State to rebut the prima facie case. An effective rebuttal of either prong of the prima facie case, the historical disparity indicating systematic exclusion or the continuation of systematic exclusion into the present case, will defeat a
Swain
claim.
See Willis v. Zant,
*1384 Regarding rebuttal of the first prong of a history of systematic exclusion, the Court has a distinct choice between the positions of the Petitioner and the Respondents, both of which are supported by the evidence presented. The Court may accept the Petitioner’s theory, supported by the evidence and analysis of his expert that, in accordance with an express philosophy, the prosecutor systematically excluded Blacks by using nearly 80% 2 of his peremptory challenges to strike Blacks from juries. Or, the Court may accept as more persuasive the position of the Respondents also supported by the evidence and analysis of their expert that despite the high number of challenges to Blacks by the prosecutors the aggregate resulting juries had a substantial black representation (29%) and this proves that no systematic exclusion has occurred. In analyzing this pre-Batson case, the Court must determine whether systematic exclusion is proved by the percentages against Blacks in the challenging process or disproved by the percentages in the resulting juries.
Petitioner argues that this Court should be guided only by the 80% statistics from the challenging process itself. Counsel for the Petitioner argues that the Court should look for a proportionate number of pеremptory challenges exercised against Blacks as compared to the number of Blacks on the venire panel. Petitioner’s expert testimony primarily concentrated on the difference between the percentage of Blacks among all veniremen and the percentage of Blacks among veniremen peremptorily challenged by the prosecutor; he termed this “depressing” the percentage of Blacks allowed to serve on juries. But a defendant does not have a right to a jury composed in equal portion to the population or to a jury of any particular composition.
Taylor v. Louisiana,
The choice before the Court is which set of data or conclusions to acceрt. In determining whether to use the percentage of Blacks challenged in the process of jury selection or to use the percentage of Blacks actually serving in the resulting juries, the Court finds that previous cases under
Swain
have focused on the average racial composition of petit juries in determining whether peremptory strikes of Blacks violated the Equal Protection Clause. It first began in
Swain
where the Court looked at the result that
no Negroes
had
served
on a petit jury in that county for as long as anyone could remember.
See Swain,
The Court is strongly persuaded by the fact that other courts presented with statistics close to this Court’s finding of 80% challenges against Blacks have rejected
Swain
claims.
See, e.g., United States v. Carter,
The defendant here has failed to show the “systematic exclusion” of Blacks prohibited by the Fifth Amendment as interpreted in Swain and Pearson. Blacks have served on juries in the Eastern District of Louisiana in only slightly less than the proportion that they register to vote, and the United States Attorney’s Office has let too many opportunities to challenge black jurors pass to permit the conclusion that the assistants use their challenges systematically to exclude Blacks.
Id.
at 1248. Although the court specifically did not find a constitutional violation, the court chose to exercise its power under Rule 33 of the Federal Rules of Criminal Procedure to grant a new trial because the judge believed that given all the circumstances of the case the trial was less than fair.
Id.
at 1249-50. Several cases in which a prima facie
Swain
case was not established have also noted that Blacks had served on the jury in each particular trial.
E.g., Thomas v. Wainwright,
The Eleventh Circuit in
United States v. David,
Batson rejects the view in Swain that the Equal Protection Clause only requires that black citizens not be deprived of jury service by being systematically excluded from petit juries; Batson rests on a rationale that blacks are entitled not to be struck for racial reasons, and black defendants are entitled to be tried in a system free of racially exclusionary practices. This represents morе than a group entitlement not to be entirely excluded from participation. Rather, under *1386 Batson the striking of one black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown.
Id. Batson
establishes that the courts now look at the selection or challenging process rather than just the resulting juries for a determination of systematic exclusion.
Batson,
The results test appears to be the most appropriate test under the Swain line of cases for analyzing data regarding systematic exclusion of Blacks from juries. By accepting the results percentages as opposed to challenge process perсentages, the Court finds that the practices of District Attorney Peters and the District Attorney’s Office are to accept Blacks so that Blacks have served on juries to an extent to comprise 29% of the juries. Therefore, Blacks have not been disenfranchised from serving on juries in the First Judicial District of the Seventh Circuit Court District, and there is no historical violation of the Equal Protection Clause. Historic systematic exclusion of Blacks has been effectively rebutted, so the Petitioner fails on this first prong of the case.
The prosecutor did not directly address his testimony to rebutting the second prong that any exclusion continued into the Petitioner’s trial. Although the State did not think it was putting on rebuttal proof because of a mistaken belief that the Court would bifurcate the hearing, the Court does have enough evidence and rebuttal proof from the record to rule on this second prong. The Court has found that Peters, by his testimony and by the notations contained in the juror list sheets, expressed racially neutral reasons for challenging five of the seven Blacks who were peremptorily struck in Edwards’ trial. He has used these same reasons to strike white potential jurors in this case as well as in other cases. In Edwards’ trial one Black was not challenged by the State and would have been a juror in the case but for peremptory challenge of him by the defense. Furthermore, the present case is distinguishable from a recent case,
Garrett v. Morris,
CONCLUSION
From the foregoing analysis, the Court finds that on the presentation of Petitioner’s statistics, Petitioner did meet a prima facie case under Swain. But the State in effect rebutted the prima facie case with additional and more persuasive statistics that Blacks have not been systematically excluded or disenfranchised from serving on petit juries within the First Judicial District of the Seventh Circuit Court District in Mississippi. The State rebutted an historical pattern of systematic exclusion as well as continuation of any pattern into Leo Edwards’ trial itself. On this basis, the Petitioner did not prove his claim under the Fourteenth Amendment of systematic exclusion of Blacks from trials by use of the *1387 prosecutors peremptory challenges. Therefore, the Court denies Leo Edwards’ Petition for Writ of Habeas Corpus.
Accordingly, it is ordered that the Petition for Writ of Habeas Corpus be, and hereby is, denied. It is further ordered that the stay of execution heretofore entered by the Court in this action is vacated.
Notes
. The experts and parties spoke of the percentages in the "venire,” but they clarified that the data covered those persons left on the venire panel after challenges for cause. They also referred to this as the pre-peremptory strike pool.
. Evidence of peremptory challenges against Blacks for all prosecutors was 79.3% and evidence for Peters as leading prosecutor was 76.5%.