Lead Opinion
OPINION OF THE COURT
I. INTRODUCTION
This matter comes on before this Court on appeal from a final order entered in the District Court on July 5, 2007, conditionally granting Appellee Robert Lark a writ of habeas corpus, vacating his Pennsylvania state court death sentence, and ordering the Commonwealth of Pennsylvania to retry Lark within 180 days or release him.
II. BACKGROUND & PROCEDURE
We take the following facts from the Pennsylvania Supreme Court’s opinion affirming the denial of Lark’s first petition for state post-conviction relief:
[I]n late 1978, Lark robbed Tae Bong Cho while putting a gun to the head of the victim’s infant child. He was apprehended shortly after the robbery and was charged with the crime. Approximately two months later, Lark murdered Mr. Cho in order to prevent him from testifying against Lark in the robbery trial. No witness was able to identify the killer, because he wore a ski mask. However, Lark bragged to a number of acquaintances that he had killed ‘the Korean.’
Lark failed to appear for trial on the robbery charge and he was convicted in absentia. Thereafter, Lark repeatedly threatened the prosecutor in the robbery case and detectives investigating the Cho homicide. He was captured on January 9, 1980 after he took a mother and her two small children hostage. While he was barricaded inside the hostage’s house, he told police: ‘I’ll kill you all like that [expletive ] ... I’ll shoot you in the legs.’ Following capture, Lark was charged with offenses rеlated to the murder of Mr. Cho, terroristic threats against the prosecutor in the robbery case, and the kidnapping of the woman and her two children. The first trial ended in mistrial as the result of an inadvertent question asked by the trial court....
Commonwealth v. Lark,
At his second trial, in 1985, Peter Rogers represented Lark, who is African-American, and assistant district attorney John Carpenter represented the Commonwealth.
Mr. Rogers: Your Honor, Before the other juror comes in, can we ... may the records be preserved to indicate the racial composition of the jurors who are coming by so as to preserve an opportunity for me to make a challenge that the Commonwealth may in fact be excluding all blacks who come before this panel? Only way I can determine that is if I have the records made available to me. Not today, Your Honor, but I just ask—
The Court: What records are we talking about?
Mr. Rogers: The records which will— that defense counsel doesn’t get a chance to see and I guess the Commonwealth doesn’t but I think it*600 should indicate addresses, phone numbers, race, things like that, Your Hon- or.
Mr. Carpenter: Judge—
The Court: I don’t know that there’s any indication of race at all.
Mr. Carpenter: My recollection is that—
Mr. Rogers: As of this afternoon, Your Honor, he is striking all blacks.
Mr. Carpenter: Oh. How awful.
App. at 611-12.
The discussion between Rogers and the trial court continued with Rogers insisting that Carpenter was striking blacks and asking the court to preserve a record of the race of the jurors. The trial court responded by asserting that there was “nothing on the record as to who was white and who was black,” and that there was no way to determine the race of the jurors. Id. at 613. Rogers stated that he wanted the records preserved only from the last jury panel and he was not arguing that Carpenter had exercised his peremptory challenges in a discriminatory manner during the prior two days of jury selection. Carpenter stated, however, that he had not systematically excluded jurors, pointing out that there were three jurors on the panel of thе same race as Lark. The trial court, applying the law as it stood at the time of the trial, indicated that “neither one of [the attorneys] has to give any reason for [exercising a peremptory challenge].” Id. at 614. Ultimately, the trial court denied Rogers’ request, indicating that there was no record of the race of the jurors. Rogers did not raise the equal protection peremptory challenge issue again.
On June 28, 1985, the jury returned a verdict finding Lark guilty of first-degree murder, possession of an instrument of crime, terroristic threats, and two counts of kidnapping. In the penalty phase of the trial which followed, the jury found that there were no mitigating circumstances but that there was one aggravating circumstance — the murder of a state’s witness — and set the penalty at death. The trial court denied all post-trial motions and imposed Lark’s death sentence on April 24,1986.
On April 30, 1986, six days after the court sentenced Lark, the United States Supreme Court issued its opinion in Batson v. Kentucky which lessened the burden of proof that Swain v. Alabama,
Lark filed a direct appeal from his conviction and sentence to the Pennsylvania Supreme Court.
After completion of Lark’s direct appeal the judicial proceedings in his case lay dormant as he did not file any further applications or motions until six years later when, in November 1994, after the Governor of Pennsylvania signed a warrant for his execution, he sought a stay of execution in the Philadelphia Court of Common Pleas. That court denied Lark’s request for a stay on November 7, 1994, following which on November 8, 1994, Lark filed a pro se motion in the District Court seeking an order staying his execution. The District Court granted the stay to enable Lark to file a state post-conviction petition.
On November 4, 1994, Lark filed his first Post Conviction Relief Act (PCRA), 42 Pa. Cons.Stat. Ann. § 9541 et seq. (West 1989), petition in the Philadelphia Court of Common Pleas. After appointment of counsel, Lark filed an amended PCRA petition on February 8, 1995, raising 25 claims of trial court error and ineffective assistance of counsel but the claims did not include an assertion that there had been a Batson violation. The Commonwealth moved to dismiss the petition, and the PCRA court, without holding an evidentiary hearing, granted that motion. Lark appealed from the dismissal to the Pennsylvania Supreme Court.
In April 1997, while Lark’s appeal was pending in the Pennsylvania Supreme Court, the Philadelphia District Attorney’s Office released a video tape (the “McMahon tape”) in which former assistant prosecutor Jack McMahon instructs his prosecutorial colleagues to exclude potential jurors on the basis of race, gender, occupation, and neighborhood. On the tape that McMahon made after the Supreme Court’s decision in Batson, he advised against striking all African-Americans and stated that his ideal jury would be composed of eight whites and four blacks.
On August 29, 1997, Lark filed a second PCRA petition in the Court of Common Pleas. In his second petition, Lark advanced several claims predicated on newly discovered facts, including a claim of discriminatory jury selectiоn based on: (1) the McMahon tape; (2) the prosecutor’s allegedly discriminatory pattern of strikes; and (3) a report that Professors David Baldus and George Woodworth had authored on jury selection practices in Philadelphia capital cases from 1983-1993 (“the Baldus study”). Lark requested discovery and an evidentiary hearing to present evidence regarding the racial makeup of the jurors that Carpenter had struck and his
On appeal from the denial of post-conviction relief, the Pennsylvania Supreme Court held that Lark’s Batson claim was timely to the extent it was based on the McMahon tape because the facts underpinning that claim did not become available until the Philadelphia District Attorney’s Office released the tape in April 1997, and thus Lark’s Batson claim insofar as based on the McMahon tape came within the exception to the one-year deadline for filing PCRA petitions predicated on newly discovered facts. See id. at § 9545(b)(ii); Commonwealth v. Lark,
While his appeal was pending from the denial of his second PCRA petition in the Pennsylvania Supreme Court, Lark, in recognition of the possibility that if he did not act promptly the Anti-Terrorism and Effective Death Penаlty Act’s (AEDPA) one-year statute of limitations would preclude him from seeking federal relief, filed a habeas corpus petition in the District Court. Lark admitted that his federal petition contained unexhausted claims that had been included in his second PCRA petition. The District Court dismissed the petition without prejudice but ordered that the filing date that Lark filed another petition would relate back to the date of the filing of the dismissed habeas corpus petition. See Lark v. Beard, Civ. No. A. 01-1252,
On March 16, 2001, after the Pennsylvania Supreme Court denied Lark’s appeal, he timely filed another habeas corpus petition in the District Court, this time raising 15 claims.
In an order entered on May 23, 2006, the District Court held that Pennsylvania’s one-year statute of limitations for PCRA petitions was not in force at the time of Lark’s alleged default and, relying in part on our holding in Bronshtein v. Horn,
Carpenter further testified that he remembered Lark’s trial because it was the only case in which he obtained a death sentence and because of his tense relationship with Rogers during the trial. In preparation for his testimony at the evidentiary hearing, Carpenter reviewed the transcript of the voir dire but he could not recall much of that process and could not recall specific jurors. Carpenter also reviewed the handwritten notes he took during jury selection, but they did not refresh his recollection of his reasons for his strikes of individual jurors and Carpenter testified that, while he used abbreviations and symbols, he was not systematic in his note-taking.
The Commonwealth then questioned Carpenter about each of his individual peremptory strikes. Except as to one juror, Charles Rabb, Carpenter had no independent or refreshed recollection of reasons for any of the peremptory strikes he exercised during Lark’s trial. However, based on the circumstantial evidence that Carpenter provided, the District Court found that the Commonwealth had offered race-neutral reasons for every peremptory strike the Commonwealth questioned him about except for three jurors. . Inasmuch as .the District Court later based its grant of the conditional writ on Carpenter’s failure to provide a race-neutral explanation for these three jurors, we will focus on those jurors in this appeal. However, we think it is important to recognize that, despite our focus on these three jurors, on remand the District Court may conclude at the third step of the Batson process that any one of Carpenter’s 13 peremptory strikes against African-Americans amounted to purposeful discrimination.
The first juror Carpenter could not recall striking and could not provide circumstantial evidence for removing was Shirley Sampson, an African-American female, who was the subject of his first peremptory challenge. Carpenter could not recall
Before proceeding to the next juror, the Commonwealth’s attorney asked Carpenter questions about his general jury selection practices. Carpenter stated that the neighborhood where a potential juror lived was important becаuse he did not want jurors who lived near the defendant or the place where the incident involved in the trial had occurred. Though Carpenter indicated that he did not want a juror who lived too close to the defendant or who lived close to the crime scene, he did not state that he struck Sampson for either of these reasons. Later, Carpenter testified that he took into account a potential juror’s: (1) employment status and nature of employment, as having a job showed that person had roots in the community but that he nevertheless did not want teachers or social workers on the jury; (2) a juror’s age, as older jurors were wiser and more responsible; (3) children, as Carpenter did not want jurors who had children who were the same age as the defendant; (4) home ownership, as a homeowner had a stake in the community; (5) hardship; (6) prior jury experience; (7) history as a victim of crime or a witness or defendant in a criminal case; (8) relationship with police officers, as Carpenter viewed jurors positively if they had family members who were police officers; (9) acquaintance with any potential witnesses in the trial; and (10) feelings about the death penalty.
The second venireperson for whom Carpenter could not give a specific reason, or a reason based on circumstantial evidence, for striking was Florence Williams, also an African-American female. Carpenter could not find anything “particularly wrong” with Williams by looking at the trial transcript. Id. at 1044. He, however, did state that there were other circumstances that might not appear in the transcript, “[f]or example, if I don’t like the juror, I think ... it’s a good bet she doesn’t like me.” Id. at 1045. When the District Court stated that “there could have been body language there,” Carpenter responded by saying “exactly.” Id.
As was the case with Williams, Carpenter could not recall a specific or circumstantial reason for striking the third juror, Edison Sisco,
After the hearing, the parties filed two stipulations as to the race of potential jurors that Carpenter struck and seated on the jury. The stipulated list of 29 persons included the race and gender of the selected jurors, the selected alternates, and the prospective jurors that Carpenter excused with peremptory challenges. According to the stipulations, the jury in Lark’s case
On July 3, 2007, the District Court granted the writ on the strength of the Batson claim, ordering the Commonwealth to retry Lark within 180 days or release him. The Court examined Lark’s claim under the familiar three-step Batson analysis:
First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.
Miller-El v. Cockrell,
As we indicated above, the District Court, in its May 23, 2006 order holding that the one-year PCRA time bar was not an independent and adequate ground to bar Lark’s petition in that Court, determined that Lark met the first step of the Batson inquiry.
III. JURISDICTION AND STANDARDS OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254 and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. The parties dispute the appropriate standard of review. They agree that we exercise plenary review over the Court’s conclusions of law and review its factual findings for clear error. See Holloway v. Horn,
Lark asserts that once a district court concludes that a petitioner has shown that there was intentional discrimination in the jury selection process, a court of appeals may not reject that determination unless the district court’s conclusion is shown to be clearly erroneous. Wilson v. Beard,
Lark’s citation of Wilson for the standard of review is misleading. In Wilson, we upheld a district court’s factual finding of intentional discrimination at the third step of the Batson analysis. Id. at 670. But the district court based that finding on its credibility determination that the prosecutor acted with a discriminatory intent in exercising his peremptory strikes. Id. Here, the District Court did not base its decision on a credibility determination nor did it proceed to the third step of the Batson analysis. Rather, the Court ruled that the Commonwealth did not offer any explanation for making the three peremptory strikes and, therefore, as a matter of law, it failed to meet its burden at step two of the Batson analysis. But the Court’s approach here was problematic, for we have stated, “the Batson inquiry ends and the conviction must be vacated at the second stage of the analysis if the state’s explanation is such that, taken at face value, it either demonstrates an equal protection violation or would otherwise be inadequate as a matter of law to support the conviction.” Johnson v. Love,
IV. DISCUSSION
A. Timely Batson Objection
First, the Commonwealth argues that Lark did not make an adequate “Bat-son-style objection at trial,” and therefore, under our precedent, he is not entitled to relief on the Batson claim. Appellant’s br. at 13. Lark counters by asserting that the Commonwealth impermissibly is raising this argument on appeal for the first time. In reply, the Commonwealth asserts that it raised the issue at several points in its original response to the petition. Further, the Commonwealth argues that, inasmuch as we have held that a timely objection at trial is required to preserve a Batson claim, Lark has the burden to prove that he raised a timely Batson objection at trial and thus the Commonwealth did not need to raise the issue as an affirmative defense. See Lewis v. Horn,
The Commonwealth argues that, in any event, in these habeas corpus proceedings it raised Lark’s failure to object by stating, in its response to Lark’s petition, that: (1) defense counsel “objected to, at most, four peremptory challenges which the prosecutor had made during the afternoon session of June 7, 1985”; (2) “trial counsel did not specify the exact strikes to which he was objecting”; (3) “as a result of [Lark’s] dereliction in pursuing the Batson claim in state court, the record was not preserved”; (4) “[T]he record reflects that defense counsel told the court he had what he needed to make a record, but he never raised the subject again.” Appellant’s reply br. at 5 (internal citations and quotation marks omitted).
These statements, however, did not put the District Court on notiсe of the legal argument that the Commonwealth now wishes to raise: that Lark’s objection at trial was not sufficient and timely and
We have held that, even in trials before the Supreme Court’s decision in Batson, a timely objection to the prosecutor’s exercise of peremptory strikes is a prerequisite to raising a Batson claim on appeal. Lewis v. Horn,
As was true for the petitioners in Lewis and Abur-Jamal, Lark’s trial was prior to the Supreme Court’s decision in Batson and thus was at a time that Swain v. Alabama,
Here it is clear that Rogers, Lark’s trial attorney, raised a timely objection to what he perceived was the prosecutor’s exercise of discriminatory peremptory challenges. At the trial on June 7, 1985, Rogers asked that:
[T]he records be preserved to indicate the racial composition of the jurors who are coming by so as to preserve an opportunity for me to make a challenge that the Commonwealth may in fact be excluding all blacks who come before this panel? Only way I can determine that is if I have the records made available to me.
App. at 611-12.
Counsel later stated that “as of this afternoon, your honor, he is striking all blacks.” Id. at 612. The trial court refused to make a record as it stated that there was no way to determine a person’s race or color and that neither attorney had to explain his reasons for exercising peremptory challenges. Rogers’ statements that the prosecutor was striking all of the black jurors put the trial court on notice of Lark’s claim and distinguishes his case from Lewis and Abu-Jamal. Specifically, Rogers timely pointed out what he perceived was the Commonwealth’s racially motivated peremptory strikes and he thus invited the trial court to develop a record on the issue for appellate review. This notice was all that Abu-Jamal requires. See Williams v. Beard,
The Commonwealth’s contentions that Rogers only made a “vague request for records,” did not ask the trial court to order Carpenter to explain himself, and only questioned the challenge of four jurors, do not demonstrate that Rogers did not make an objection at trial to the allegedly race based peremptory challenges. Appellant’s reply br. 8-10 (internal quotation marks omitted). It would have been futile for Rogers to ask that Carpenter be required to explain the reason for his individual peremptory challenges or for Rogers to renew the objection when each African-American juror was excused for under the Supreme Court case law at the time of Lark’s trial, individual challenges in one case could not be the basis for finding that there had been an equal protection violation.
We think it is also significant that even Carpenter recognized that Rogers was attempting to raise a Fourteenth Amendment Equal Protection argument when Carpenter stated, referring to the Swain standard, that “there’s obviously not systematic exclusion when you’ve got 3 members out of 9 who are the same race as the defendant and his attorney.” App. at 616; see Swain,
Therefore, even though Rogers’ statement that Carpenter was striking “all the blacks” from the jury and his request that the trial court make a record of the race of the jurors did not raise an objection with “the clarity that appropriate citations would have promoted,” his protest reasonably raised an equal protection claim under Swain. Ford,
Finally, the Commonwealth argues that, even if Lark properly objected to Carpenter’s peremptory strikes so as to raise an equal protection claim, the trial court’s rejection of that objection is entitled to deference. It is true that in the habeas corpus context federal courts owe the same deference to implicit state court factual findings as they afford to explicit state court factual findings. See, e.g., La-Vallee v. Delle Rose,
B. Procedural Default
We next consider whether Lark procedurally defaulted his Batson claim by failing to advance it properly in the Pennsylvania courts. There has been a procedural default when “a state сourt declined to address a prisoner’s federal claims because the prisoner failed to meet a state procedural requirement.” Coleman v. Thompson,
Lark first attempted to raise a specific claim under Batson when he unsuccessfully sought an order from the Pennsylvania Supreme Court remanding his PCRA petition to the PCRA court so that he could raise a Batson claim. Thereafter Lark filed a second PCRA petition in 1997 raising a Batson violation as a ground for relief and requesting that the court grant him an evidentiary hearing to present proof of the race of the venirepersons at his trial and to enable him to advance the McMahon tape in support of his claim. The PCRA court, without holding an evidentiary hearing, dismissed the petition as untimely under the PCRA deadline set forth in 42 Pa. Cons.Stat. Ann. § 9545(b).
On appeal from the dismissal of the second PCRA petition, the Pennsylvania Supreme Court invoked section 9545(b)(l)(ii)
As we recently discussed in Morris v. Beard,
In Bronshtein, we explained that the PCRA’s one-year statute of limitations was not an adequate state bar to federal habeas review of claims defaulted prior to, at the very least, October 20, 1998. [Bronshtein, 404 F.3d] at 709. Before that date, Pennsylvania courts frequently applied a ‘relaxed waiver’ rule in capital cases. Id. In other words, courts refused to enforce procedural rules-such as the PCRA’s one-year statute of limitations — in capital cases because of the ‘overwhelming public interest in preventing unconstitutional executions.’ Id. at 708 (quoting Commonwealth v. McKenna,476 Pa. 428 ,383 A.2d 174 , 180-81 (Pa.1978)) (internal quotation marks omitted). Although a trio of Pennsylvania Supreme Court decisions in 1998 and 1999 interred the relaxed waiver doctrine, see, e.g., Commonwealth v. Banks,556 Pa. 1 ,726 A.2d 374 (Pa.1999), we observed in Bronshtein that it was not clear that the rule would be unavailable as of October 20, 1998— the date of Bronshtein’s default. See404 F.3d at 709-10 . Because the PCRA’s one-year statute of limitations ‘was not firmly established and regularly followed’ as of that date, we held it was an inadequate state bar to federal habeas review of Bronshtein’s claims. Id.
Morris,
Here, the default in the timeliness of the filing of Lark’s second PCRA petition was on January 16, 1996,
The Commonwealth argues that the state time-bar rule was an adequate basis to find that Lark had proeedurally defaulted his Batson claim because he had notice of the time bar which the Pennsylvania General Assembly made explicitly applicable to capital cases and, further, that the Pennsylvania Supreme Court never applied the relaxed waiver rule to the time bar. But our reasoning in Bronshtein refutes these arguments and we have reaffirmed the Bronshtein reasoning in subsequent cases and, therefore, we neеd not address the Commonwealth’s arguments any further.
In holding that the time bar was not an independent and adequate state ground for denying relief for purposes of a later procedural default analysis in a federal district court, we have considered the two most recent Supreme Court decisions addressing the adequate and independent state rule doctrine, Walker v. Martin, — U.S.-,
The Supreme Court’s holdings in Walker and Kindler have not affected our holding in Bronshtein that prior to 1998 capital petitioners in Pennsylvania could rely on state courts to relax procedural rules, including the one-year PCRA time bar. Bronshtein,
The Commonwealth argues that, even assuming Lark’s Batson claim is not procedurally defaulted, the District Court should not have held an evidentiary hearing on the claim inasmuch as Lark was not sufficiently diligent in pursuing his Batson claim in state court as 28 U.S.C. § 2254 requires. Section 2254(e)(2) provides that,
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
The Supreme Court has held that a failure to develop the factual basis of a claim in the opening clause of section 2254(e)(2) “is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor,
Thus, there is a separate fault requirement in the opening clause of section 2254(e)(2) which asks whether the petitioner adequately and diligently pursued the factual basis of his claim in state court. If the petitioner fails in this regard and is therefore “at fault,” the bar to relief in section (e)(2) is raised. Otherwise, if the petitioner is not “at fault,” the court may exercise its discretion to grant an evidentiary hearing. See Campbell,
The Commonwealth contends that the District Court improperly conflated diligence and procedural default. In Wilson we stated that the procedural default doctrine and section 2254(e)(2)’s diligence requirement analytically were linked: “If a petitioner requests a hearing to develop the record on a claim in state court, and if the state courts ... deny that request on the basis of an inadequate state ground, the petitioner has not ‘failed to develop the factual basis of [the] claim in State court proceedings’ for the purposes of
The Commonwealth makes a strong argument, particularly inasmuch as the years of delay between the District Court evidentiary hearing and the trial greatly prejudiced its ability to respond to the Batson claim. As the Supreme Court has noted, the principles of comity and federalism underlie the diligence requirement:
Comity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error.
Williams,
It is undoubtedly reasonable to argue that Lark’s failure to raise the Batson claim on direct appeal followed by his inaction for six years before filing a post-conviction petition, which even then did not raise a Batson claim, demonstrated that he did not make a “diligent search for evidence.” Id. at 435,
We nevertheless reject the Commonwealth’s arguments regarding the delay in this case because, after the Commonwealth submitted its brief on this appeal but before the oral argument, we rejected an almost identical argument in Morris. In that case, the petitioner, Kelvin Morris, was convicted of first-degree murder and sentenced to death in Pennsylvania state court. After he filed an unsuccessful direct appeal and an unsuccessful PCRA petition, Morris filed a second PCRA petition in which he raised, for the first time, a claim that his trial attorney’s representation of his brother, Artie Morris, in a civil suit created a conflict of interest that deprived Morris of effective assistance of counsel in his criminal trial. Morris,
Inasmuch as the petitioner in Morris and Lark are in almost identical procedural postures, we will quote from our opinion in Morris at length:
One might argue that [Morris’] failure to comply with the PCRA’s one-year statute of limitations means that he did not seek a hearing ‘in the manner prescribed by state law.’ Williams,529 U.S. at 427 ,120 S.Ct. at 1485-86 . But such an argument runs headlong into our holding in Bronshtein, where we observed that the PCRA’s time bar was neither ‘firmly established’ nor ‘regularly followed’ at the time [Morris] filed his second PCRA petition.404 F.3d at 709-10 . Because of the uncertainty surrounding Pennsylvania’s use of the ‘relaxed-waiver rule’ at that time, it was effectively impossible for [Morris] to fail to comply with Pennsylvania law on statute of limitations grounds when filing his second PCRA petition. In Williams, the Supreme Court explained that a finding of diligence would turn on whether a petitioner ‘made a reasonable attempt’ to pursue his claim ‘in light of the information available at the time.’529 U.S. at 435 ,120 S.Ct. at 1490 . With no ‘firmly established and regularly applied rule’ clearly barring [Morris’] lengthy delay, Bronshtein,404 F.3d at 708 , his belated hearing request was an acceptable attempt to pursue his claim in light of the information available to him at the time of filing. Because the Pennsylvania state courts failed to hold a hearing and rule on [Morris’] conflict-of-interest claim ‘for some reason unrelated to [his] diligence, § 2254(e)(2) [does] not apply and a new evidentiary permitted.’ Taylor v. Horn,504 F.3d 416 , 436 (3d Cir.2007).
As the Commonwealth correctly argues, merely because a petitioner has complied with state law when seeking an evidentiary hearing does not mean that he has been diligent for purposes of § 2254(e)(2). The jurisdictional standard for procedural default of § 2254(a) and the evidentiary hearing standard of § 2254(e)(2) are distinct provisions that will frequently require separate analyses. But where, as here, a state court gives no reason for denying a petitioner’s hearing request other than his fail*617 ure to comply with a subsequently invalidated state statute of limitations, we cannot say that the petitioner was not diligent for purposes of § 2254(e)(2). Accordingly, we hold that § 2254(e)(2) did not prohibit the District Court from conducting an evidentiary hearing on [Morris’] conflict-of-interest claim.
Morris,
In a letter filed pursuant to Fed. R.App. P. 28(j), the Commonwealth attempts to distinguish Morris by arguing that the rule we established in that case was the following: “where a petitioner had the opportunity and forum to litigate the merits of the claim in state court, but failed to do so, he is not diligent under [section] 2254(e)(2) even though his later attempt to raise the again [sic] is barred by an inadequate rule.” Appellant’s 28(j) letter dated January 31, 2011, at 1-2. But as the excerpted portion above demonstrates, this is a misstatement of Morris’ holding. Rather, the holding in Morris was that section 2254(e)(2) does not bar an evidentiary hearing for lack of diligence where the only reason a state court gives for denying an evidentiary hearing is a subsequently invalidated state procedural rule. This is exactly what happened in Lark’s case.
Furthermore, the Commonwealth’s reliance on our opinion in Taylor v. Horn,
D. Merits of Lark’s Batson Claim
1. TheAEDPA
We can understand why by this time a reader of this opinion would wonder whether we ever would reach the substan
Pursuant to the AEDPA, where a state court adjudicates the merits of a petitioner’s claim, federal courts review the claim under a highly deferential standard. See 28 U.S.C. § 2254(d)(1) & (2); Cullen v. Pinholster, — U.S. -,
2. Batson Three-Step Analysis.
The Equal Protection Clause of the Fourteenth Amendment “prohibits a prosecutor from using a peremptory challenge to strike a prospective juror solely on account of race.” Holloway,
As we stated earlier, typically the adjudication of a Batson violation proceeds in three steps: (1) the defendant must make a prima facie showing that the prosecution has еxercised a peremptory challenge in a discriminatory manner; (2) once the defendant makes that prima facie showing, the prosecutor must offer a race-neutral reason for having exercised the challenge; (3) the trial court, weighing the parties’ submissions, determines whether the prosecution’s strike amounted to purposeful discrimination violating the Equal Protection Clause of the Fourteenth Amendment. Cockrell,
The Commonwealth argues that we should not use the Batson three-step burden shifting procedure when making an analysis many years after the trial because the use of the procedure at that time is unfairly advantageous to the petitioner and greatly prejudicial to the Commonwealth. But our precedent clearly requires that we reject that argument. See, e.g., Hardcastle v. Horn,
Certainly, when the Supreme Court developed Batson’s burden-shifting framework, it envisioned that, inasmuch as a timely objection would permit a prosecutor to explain use of the challenges, a defendant would make an objection at trial to what he regarded was the prosecutor’s racially based use of peremptory challenges. After all, as the Commonwealth argues, applying the burden shifting method several years after the trial makes it more difficult for the prosecution to provide a race-neutral explanation for peremptory strikes. Appellant’s br. at 37-38 citing Carter v. Hopkins,
In recognition of the delay problem, we realize that it is one thing to apply Batson in the adjudication of a direct appeal that was pending when the Supreme Court decided that case but quite a different matter to apply it in a collateral proceeding many years later merely because a direct appeal had been pending in the case under review when the Supreme Court decided Batson. Thus, it is not surprising that we have a line of cases, discussed more extensively below, which provide guidance on how to approach a prosecutor’s faded memory in the adjudication of Batson claims brought years after trial. But even in cases of
3. Step 1: The Prima Facie Case
The Supreme Court has indicated that in a determination of whether a petitioner has established a prima facie case under Batson, the prosecutor’s pattern of peremptory strikes is significant as are the “prosecutor’s questions and statements during voir dire examination and in exercising his challenges.... ” Batson,
Here, though the District Court indicated in its July 3, 2007 opinion and order that Lark established a prima facie Batson violation, it is unclear when, if ever, the Court actually made that finding. In its May 23, 2006 opinion, though the Court stated that Lark alleged facts which, if proven true, would establish a prima facie case under Batson, it noted that the Commonwealth disputed those facts and, indeed, it granted an evidentiary hearing, in part, to resolve that dispute. Lark I,
In its second opinion and order on July 3, 2007, the order from which the Commonwealth has appealed, the District Court, in a footnote, stated that it previously had found that Lark established a prima facie case and cited to its May 23 opinion in which it set forth the disputed facts. Lark II,
The Commonwealth, however, does not challenge that Lark has established a prima facie Batson violation.
4. Step 2: A Race-Neutral Explanation
The Commonwealth argues that Carpenter’s inability to explain the reasons for his use of three peremptory challenges at the second step of the Batson analysis was not a sufficient ground to grant the conditional writ of habeas corpus because that inability along with the other information available to the District Court did not enable Lark to satisfy his ultimate burden of proving intentional discrimination. We agree with the Commonwealth’s contention.
At step two, the Commonwealth has the burden to produce a race-neutral explanation but nevertheless the opponent of the peremptory strike retains the ultimate burden of proof on the Batson issue. See Purkett,
Here the District Court found that Carpenter’s failure to articulate any race-neutral justification for the strikes of three jurors mandated that it grant Lark habeas corpus relief. The first juror that Carpenter challenged that we consider is Shirley Sampson, an African-American female. Carpenter could not recall why he struck Sampson and reading the transcript did not refresh his memory. Carpenter, however, unequivocally denied that he did so because she was African-American. Before proceeding to the next juror, the Commonwealth’s attorney asked Carpenter whether where the juror lived could be a significant factor in exercising a peremptory strike. Carpenter answered that he did not want a juror who lived too close to the defendant or who lived close to the crime scene; however, he did not state that he struck Sampson for either of these reasons.
Similarly, Carpenter could not recall a specific reason for striking Florence Williams, an African-American female. Carpenter could not find anything “particularly wrong” with Williams by looking at the trial transcript (App. at 1044); he did, however, state that there were other circumstances that might not appear in the transcript, “[f]or example, if I don’t like the juror, I think ... it’s a good bet she doesn’t like me.” Id. at 1045. When the District Court stated that “there could have been body language there,” Carpenter responded by saying “exactly.” Id. The situation was slightly different with respect to the third juror, Edison Sisco, an African-American male, even though Carpenter could not recall a specific reason for striking him. Carpenter did note that neither he nor defense counsel asked Sisco many questions and that Sisco was confused about the last school he attended.
Carpenter’s reasons for striking Sampson, Williams, and Sisco were inadequate to meet the Commonwealth’s burden of production as explained in Hardcastle. Carpenter’s statement that he might have struck Williams for reasons that did not appear in the transcript is the type of vague explanation we have rejected as inadequate to meet the prosecutor’s burden at the second Batson step. Hardcastle,
As we indicated above, inasmuch as the Supreme Court’s opinion in Batson was to a degree retroactive and applies to some trials held before Batson, as is the situation here, we have considered habeas corpus petitions that have led to proceedings at which a prosecutor sought to provide explanations for peremptory challenges years after the trial. In Harrison, the first such case we encountered, the prosecutor used six- of his eight peremptory challenges to strike all of the African-American venirepersons and could not recall his reasons for exercising a peremptory strike on one of the six African-American jurors he excluded during voir dire: “[j]ust looking at these notes, I don’t know. I don’t have her age down here. The fact that her son is a retired police officer, I assume she is an older woman. That could have been a factor; I don’t know.”
Cеrtain other factors, however, most notably the interests of justice, require retroactive application of Batson for cases on direct review even where a long period of time occurs in the state court appellate process. This is especially true here where defense counsel timely objected to the use of peremptory challenges, the number of peremptory challenges exercised against Blacks was so great, the race neutral reasons given for striking other black jury venirepersons were so weak, and the prosecutor was unable to articulate a race neutral reason for striking one of the black venirepersons.
Id. at 87-88. Ultimately, we held that the prosecution’s failure to rebut Harrison’s prima facie showing of racial discrimination at the second step mandated the grant of a new trial. Id. at 88.
In Johnson v. Love we held that “the Batson inquiry ends and the conviction must be vacated at the second stage of the analysis if the state’s explanation is such that, taken at face value, it either demonstrates an equal protection violation or would otherwise be inadequate as a matter of law to support the conviction.” Love,
In Love we also addressed a situation in which a prosecutor’s faded memory affects his ability to recall reasons for a particular peremptory challenge:
There will undoubtedly be post-conviction relief proceedings in which the state, by reason of death, absence, or faded memory, will be unable to produce a prosecutor with a specific recollection of the reason for a challenge alleged to violate Batson. Courts frequently are required to draw inferences from circumstantial evidence regarding a decision-maker’s state of mind, however, and we are umvilling to rule out the possibility that the state may be able to satisfy its step two Batson burden by tendering circumstantial evidence. In some post-conviction relief proceedings, it may well be possible to reach a reliable conclusion regarding the true reasons for the challenge based upon the nature of the case, the transcript of the voir dire of the challenged juror and other prospective jurors, contemporaneous notes of the attorneys involved, and any other available evidence.
Id. at 667 (emphasis added). In a footnote, we distinguished Harrison by stating that the absence of any explanation mandated relief in that ease but that Harrison does not suggest that a state should not be permitted to reconstruct a prosecutor’s rationale for excluding a juror when the prosecutor cannot explain his motivation for a strike due to his faded memory. Id. at 667 n. 4.
Ten years later, in Hardcastle v. Horn we held that the Pennsylvania Supreme Court unreasonably applied Batson when it proceeded to the third step of the analysis without finding that the Commonwealth at the second step gave an adequate justification for the use of peremptory challenges.
On further appeal, the Pennsylvania Supreme Court, which heard Hardcastle after the Supreme Court decided Batson, conducted its own review of the record and held that the prosecutor’s opportunity to observe the jurors during voir dire and her decision not to remove two African-American venirepersons constituted race-neutral reasons for two peremptory strikes. Thus it determined that Hardcastle failed to make a prima facie showing that the prosecutor’s strikes violated the equal protection clause. Id. at 253. The district court granted Hardcastle a writ of habeas corpus, and, on the Commonwealth’s appeal, we affirmed, as we found that the reasons the Pennsylvania Supreme Court accepted for the striking of the two African-American jurors did not satisfy the Commonwealth’s minimal burden of production at the second step inasmuch as the record did not contain any evidence of the two jurors’ demeanor or the prosecutor’s observation or impressions. Thus, we found that the Supreme Court’s explanation amounted “to nothing more than a statement that the
In 2005, in Wilson v. Beard there was a Batson challenge in a case in which Jack McMahon had been the prosecutor. The district court in the habeas corpus proceedings, in light of the fact that 20 years had elapsed between the time of the trial and the hearing at which McMahon explained his reasons for striking jurors at the trial, concluded that it would have been unreasonable to expect McMahon to remember reasons for his individual strikes.
Though, so far as we can ascertain, the United States Supreme Court never has addressed whether it is appropriate for a district court to grant a writ of habeas corpus at the second step because a prosecutor could not recall the reason for a peremptory challenge many years after the trial, recent precedent suggests that courts should be reluctant to do so for they should act with caution before granting relief at that step of the Batson process and our own consideration of the issue leads us to reach the same conclusion. For example, in Purkett v. Elem the Court of Appeals for the Eighth Circuit, in a step-two analysis, concluded that the prosecutor’s explanation that he used a peremptory challenge to strike a juror because the juror had- long unkempt hair and suspicious facial hair was pretextual and was not a legitimate race-neutral reason for striking the juror.
[i]t is not until the third step that the persuasiveness of the justification becomes relevant-the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.
Purkett,
More recently, the Supreme Court discussed a second-step issue in Johnson v. California,
In the unlikely hypothetical in which the prosecutor declines to respond to a trial judge’s inquiry regarding his justification for making a strike, the evidence before the judge would consist not only of the original facts from which the prima facie case was established, but also the prosecutor’s refusal to justify his strike in light of the court’s request. Such a refusal would provide additional support for the inference of discrimination raised by a defendant’s prima facie case. Cf. United States ex rel. Vajtauer v. Comm’r of Immigration,273 U.S. 103 , 111,47 S.Ct. 302 ,71 L.Ed. 560 (1927).
Johnson,
While obviously intended to apply to an objection made during voir dire, the Johnson footnote indicates that the prosecutor’s lack of response is evidence to be taken into account only at step three and is not, by itself, of such dispositive force that it establishes that there was a Batson violation. Following that line of reasoning this case presents a more compelling argument for proceeding to the third step of the inquiry. The District Court’s holding that the Batson inquiry ends if the state fails to meet its duty of production is accurate only if the prosecution, at step two, demonstrates that it based its challenge on a reason that was an equal protection violation. Burkett,
Unlike the Supreme Court’s hypothetical prosecutor in Johnson, Carpenter’s “silence” was a product of his failure to recall specific reasons for his three peremptory strikes. Carpenter’s inability to recall his reasons for exercising peremptory strikes 21 years after the trial surely is far less suggestive that at the trial there had been purposeful discrimination than a prosecutor’s outright refusal to answer the trial court’s inquiry at voir dire directly after the prosecutor exercised the peremptory challenge. After all, when at a trial the prosecutor is asked to explain the reasons for his challenge they should be fresh in
More importantly, the Supreme Court in Johnson rejected the argument that a prosecutor’s failure to respond to a prima facie case “would inexplicably entitle a defendant to judgment as a matter of law on the basis of nothing more than an inference that discrimination may have occurred.” Id. at 170,
Here, the District Court clearly erred when it ended the Batson analysis at the second step of the three-step analysis even though, as we have indicated, Carpenter’s reasons for striking Sampson, Williams, and Sisco were inadequate to meet the Commonwealth’s burden of production as we explained the burden in Hardcastle. First, though Carpenter failed to recall the reasons for exercising three peremptory strikes to remove African-American jurors, Lark’s prima facie case was not as strong as the petitioner’s prima facie case was in Harrison. In contrast to the prosecutor in Harrison who struck all the African-Americans from the jury, Carpenter did not strike four African-Americans and had five peremptory strikes remaining at the end of voir dire. See United States v. DeJesus,
In addition, the District Court found that Carpenter was not systematic in his note taking and that the only notes he took were symbols and notations he made by each juror’s name on the jury list.
There were, moreover, compelling reasons for the Court to advance to the third step of the Batson analysis. To start with, the Supreme Court has suggested that Batson’s burden shifting framework is a means to present evidence and thus the prosecution’s presentation of only thin evidence at the second step, though perhaps damaging to its case, is not dispositive on the question of discriminatory intent. Johnson,
The' District Court’s acceptance of Lark’s prima facie case as dispositive proof of Carpenter’s intent substituted inferences for an actual answer to the question of whether Carpenter discriminated in the selection of jurors. We hold that the District Court, by moving to the third step, could have weighed all of the evidence against Lark’s prima facie case. Instead, the District Court’s approach validated the fears of the respondents in Johnson: the prosecutor did not come forward with evidence at the second step and Lark received “judgment as a matter of law on the basis of nothing more than an inference that discrimination may have occurred.” Id. at 170,
Moreover, this case presents an unusual situation in which neither party may be held culpable for the delay in the adjudication of the Batson claim. Nevertheless, we see some merit to the Commonwealth’s contention that Lark should have been more diligent in pursuing the claim even though, as our discussion of procedural default demonstrates, Pennsylvania’s “relaxed waiver” policy created a post-conviction climate in which the state courts would waive procedural rules in capital cases. After all, following the Supreme
Finally, we have indicated that it is appropriate to lessen the state’s burden at the second step where the passage of time diminishes the prosecutor’s recollection of voir dire. Wilson,
We hold that given the recent Supreme Court case law and the particular circumstances of this case, the District Court should have proceeded to the third step of the Batson analysis.
V. CONCLUSION
Inasmuch as we have determined that the District Court improperly applied Bat-son, we will vacate its order, remand the case to the District Court, and direct that the Court perform the third step of the Batson analysis.
The District Court based its decision on the pattern of the prosecutor’s strikes and Carpenter’s inability to articulate a justification for three of those strikes. Any other evidence or arguments which relate to intentional discrimination, such as juror comparisons, properly are made at the third Batson step and we will not consider them at this time. Miller-El v. Dretke,
For the foregoing reasons we will vacate the District Court’s order entered on July 5, 2007, granting Lark a conditional writ of habeas corpus, and remand the case for the further proceedings that we have indicated in this opinion are required. No costs shall be allowed on this appeal.
Notes
. The District Court, at the unopposed request of the Commonwealth, issued an order on July 17, 2007, staying its conditional grant of habeas corpus relief pending the outcome of this appeal.
. Prior to his second trial, Lark moved to dismiss the charges against him on double jeopardy grounds. The trial court denied the motion and the Pennsylvania Superior Court, on interlocutory appeal, affirmed. Commonwealth v. Lark,
. Jury selection actually began on June 4, 1985, but inasmuch as the Court did not make any selections on that day, we are concerned only with June 5, 6, 7, and 10, 1985.
. Under Pennsylvania law, all sentences of death are directly appealable to the state Supreme Court. 42 Pa. Cons.Stat. Ann. § 9711(h)(1) (West 1998); 42 Pa. Cons.Stat. Ann. § 722 (West 2004).
. Of course, the applicability of Batson is subject to the various jurisdictional and procedural rules that we discuss below.
. The Pennsylvania Supreme Court also issued a stay to permit the filing of a state post-conviction petition. See Commonwealth v. Lark, Capital Appeal No. 77 (Pa. Nov. 10, 1994) (unpublished order). See Lark v. Beard, Civ. No. A 01-1252,
. For a more comprehensive discussion of the contents of the McMahon tape, see Wilson v. Beard,
. In an alternative holding, the Supreme Court held that Lark waived these claims because he did not raise them on direct appeal or in his first PCRA petition. Inasmuch as the parties agreed in the District Court that the Supreme Court applied only the PCRA time bar and not the doctrine of waiver to deny Lark’s Batson claims, we will not discuss the Supreme Court’s waiver holding as a basis for procedural default. Lark v. Beard, Civ. No. A 01-1252,
. The claims were: (1) The prosecutor used his peremptory challenges in a racially discriminatory manner and as part of a discriminatory policy of the Philadelphia District Attorney's Office, in violation of the Sixth, Eighth and Fourteenth Amendments; (2) Trial counsel was ineffective during the guilt phase of the trial by failing to object to, and opened the door for, the admission of highly prejudicial, inadmissible evidence; and he failed to investigate and present relevant and exculpatory evidence; (3) Trial counsel was ineffective at sentencing for failing to investigate, develop, prepare, or present available, relevant and compelling mitigating evidence regarding Lark's childhood abuse; deprivations and mental health impairments; and gave an ineffectual closing argument in which he failed to ask the jury to find mitigating evidence; (4) The trial court erred in answer
. The Commonwealth has conceded that Lark’s trial counsel was ineffective for failing to investigate and present mitigating evidence in the penalty phase оf the trial. However, inasmuch as the Batson claim is the only issue before us on this appeal, we will not
. The record contains only Carpenter's notes from the last two days of jury selection. We note that even these records are incomplete as some jurors questioned in the transcript do not appear on Carpenter's jury sheets. On the third day of the voir dire Carpenter wrote letter symbols such as "A,” "D,” "H,” and "J,” as well as word notations. On the fourth day, he used numbers corresponding to a key he placed at the bottom of the page. Carpenter identified the letter "D" as corresponding to a possible bias in favor of the defendant. He identified the symbol "H” as indicating juror hardship. Although Carpenter could not recall what the letter "A” symbolized, he denied that he used that letter to denote a venireperson as an African-American.
. Although the District Court referred to this juror as “Edison Cisco,” the parties refer to him as "Edison Sisco,” and his name appears as Sisco on the juror sheets from the trial. We will adopt the parties' spelling in this opinion.
. Actually in its May 23, 2006 opinion and order the District Court merely indicated that Lark made allegations satisfying the first Bat-son step.
. The District Court did not address any of Lark’s remaining guilt phase claims.
. The Commonwealth did not need a certificate of appealability to appeal. See Hardcastle v. Horn,
. In fact, as Lark points out, the Commonwealth consistently accepted the adequacy of Rogers’ objection in several documents submitted to the District Court. See, e.g., Commonwealth’s Memorandum of Law, Lark v. Beard, 01-cvl252, at 38 ("On June 7, 1985, petitioner objected to certain peremptory strikes of the prosecutor.”).
. On the remand from the Supreme Court we adhered to the result we reached in our vacated opinion and affirmed the district court’s order granting the petitioner habeas corpus relief to the extent that he had been sentenced to death in the state court. AbuJamal v. Secy Pa. Dep’t of Corr.,
. The Commonwealth cites Galarza v. Keane,
. Of course, we do not fault the trial court for failing to engage in the three-step analysis at a time that the Supreme Court had not announced that a court should engage in that analysis. However, the trial court, by refusing to make a record of the race of the struck jurors, failed even to undertake or at least initiate an analysis under the standard then in effect under Swain.
. Section 9545(b)(l)(ii) provides that a claim is not untimely if “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence.”
. The District Court set the default date as August 18, 1989, or one year after completion of the direct appeal in Lark’s case, but that date fails to account for the statutorily created one-year grace period for filing PCRA petitions where, as here, the judgment of sentence became final before the effective date of the time bar, or January 16, 1996. See Commonwealth v. Peterkin,
. The Pennsylvania Supreme Court since has made it clear that it no longer would relax procedural requirements in capital cases. See Whitney v. Horn,
. The Commonwealth seems to acknowledge this point, stating that it was including the procedural default argument in order to pre
. Kindler vacated our decision in Kindler v. Horn,
. In any event, as we noted above, we applied Bronshtein's rule after the Supreme Court decided Kindler. See Morris,
. The District Court noted that the McMahon tape “could conceivably reflect a culture of discrimination that is relevant to ... Lark’s Batson/Swain claim.” Lark I,
. Morris filed the claim 13 years after the trial and one month after his brother died.
. We are also unconvinced by the Commonwealth's attempt to distinguish Monis on the ground that the conflict of interest claim in that case, unlike Lark’s Batson claim, occurred outside the courtroom and thus the inadequate state procedural rule prevented Morris from presenting evidence in the only forum available to him. This rationale clearly was not the basis for our holding in Morris.
. Of course we recognize that in both McCrory and Henderson, unlike in this case, the defendants did not raise objections to the prosecutor's discriminatory exercise of peremptory challenges at their respective trials and, further, the voir dire was not recorded in either case. Carter,
. The Commonwealth does argue that Carpenter's pattern of strikes of African-American jurors is not sufficient to prove that any single strike was motivated by race. Appellant’s br. at 50-51. Inasmuch as the District Court, at the third step, has a duty to determine whether Lark has established that Carpenter purposefully discriminated in the exercise of any of his peremptory challenges, we will not address the Commonwealth’s argument on this appeal. After all, it is at the third step that the District Court must weigh all the facts and circumstances relating to Carpenter’s intent, including the pattern of peremptory strikes Carpenter used against African-American jurors. See Jordan v. Lefevre,
. The Supreme Court established the three-step employment discrimination framework in McDonnell Douglas Corp. v. Green,
. Of course, it has not escaped our attention that the composition of Lark's jury — four African-Americans and eight Caucasians — is described on the McMahon tape as the ideal jury. We also note, however, that the District
. Of course, if on the remand the District Court rejects Lark's Batson contention, it should consider the other contentions that he advanced but that the Court had no need to address. Some of these contentions likely will involve complex jurisdictional, procedural, and substantive questions.
Concurrence Opinion
concurring.
I join the majority opinion in its entirety, and fully agree with the remand to the District Court to complete the third step of the Batson analysis. However, I write separately to emphasize that although my colleagues note that “we have indicated that it is appropriate to lessen the state’s burden at the second step where the passage of time diminishes the prosecutor’s recollection of voir dire,” Maj. Op. 628 (citing Wilson,
In Wilson, we stated: “[I]n light of the passage of time, we agree with the District Court that it was appropriate to lessen the burden of the Commonwealth at step two.”
The majority suggests that the prosecutor’s burden must necessarily be reduced at step two when the prosecutor’s faded memory results from a long passage of time between voir dire and a Batson hearing. However, that principle should not apply when, as here, a timely objection is made to the prosecutor’s use of peremptory strikes. Under such circumstances, the fact finder may conclude that the claim of faded memory and failure to memorialize the reasons for certain strikes is less credible than might otherwise be the case. I do not suggest that this necessarily undermines a subsequent claim of failed memory. However, I also do not think it appropriate to suggest that the claim of failed memory must receive the same credibility and consideration afforded the prosecutor in Wilson. Rather, the District Court must be free to assess the credibility of the claim of failed memory during its step three Batson analysis on remand.
On remand, the District Court will have to decide whether, and to what extent, the prosecutor’s subsequent claim of failed memory should be credited given the very unique circumstances here and the fact that he was immediately informed that his motivations may be examined at a later date.