Friday, October 14, 2005

Batson, habeas, and the “McMahon videotape.”

The Circuit Court, in Wilson v. Beard, No. 04-2461 (3d Cir. Oct. 13, 2005), affirmed a lower court’s grant of habeas relief to a petitioner convicted of murder 21 years ago. In doing so, the court touches on a number of intriguing issues concerning both Batson and timeliness under 2244. Most notable is the petitioner’s success under Batson relying largely upon the notorious "McMahon videotape." First however, the court tackles some issues pertaining to timeliness under 2244.

The petitioner, Zachary Wilson, was convicted of first degree murder in 1984, two years before the Supreme Court’s landmark decision in Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor in Wilson’s case was Jack McMahon, an Assistant District Attorney in Philadelphia. In 1988, Wilson unsuccessfully sought post-conviction relief (PCRA) in PA. The PA Supreme Court denied review of his case in 1996. On about April 1, 1997, a videotape of McMahon was released in which McMahon gave a training session on jury selection to other prosecutors. The tape reveals a highly discriminatory practice of striking African-Americans based on race.

On April 3, 1997, the DA’s office sent Wilson’s counsel at the time a letter regarding the tape. Wilson soon filed a second PCRA petition, but the PCRA court found the Batson issue to be waived. Wilson’s state appeals were unsuccessful.

Wilson next filed for habeas relief in the U.S. District Court. The Commonwealth responded, arguing that the petition was time-barred under AEDPA’s one-year statute of limitations. The parties agreed that the discovery of the McMahon tape constituted the factual predicate for the habeas petition, and therefore the one-year limitations period should run from when that tape was discovered. However, the Commonwealth argued that Wilson’s petition was four days late because he could have discovered the tape on April 1 "through the exercise of due diligence." § 2244(d)(1)(D). Wilson disagreed, arguing that his presence on death row 13 years after his conviction in this case prevented such discovery; therefore the one-year period should not run until his counsel actually received notice from the DA’s office about the tape. After factoring the tolling of the limitations period for his state PCRA proceedings and appeals, if the latter date was used, Wilson’s petition would be timely by one day.

The Third Circuit, using a "reasonable diligence" standard, agreed with the District Court that Wilson did not fail to exercise due diligence in not discovering the tape during the period in which the tape was reported on the local news. Therefore, the limitations period would run from the date on which Wilson’s attorney received notice of the tape via the DA’s letter.

The Third Circuit next agreed with Wilson and the District Court’s application of FRCP 6(a), which excludes the day that an event occurred when calculating the limitations period from that event. Basically, application of the rule would provide Wilson 365 days from the date that he received notice of the tape, rather than 364. The Circuit Court’s decision was consistent with rulings of other Circuit Courts.

Next, the Court agreed with Wilson and the District Court’s application of FRCP 6(e), which provides a 3-day mailbox rule for determining receipt of service on a party. The Court determined that application of the rule was "eminently sensible" because the Court must add some additional time to account for the time it takes for a letter to be received.

Finally, the Court also agreed that Wilson was entitled to an evidentiary hearing regarding his Batson claim. The fact that the state PCRA Court had found that Wilson had waived his Batson claim was not the equivalent of "procedural default," which would bar habeas relief. The Court determined that the PA Courts had erred in failing to apply PA Supreme Court precedent that would have allowed Wilson to seek post-conviction relief.

Upon the Third Circuit’s thorough inspection of the relevant habeas issues, the Court reviewed the merits of Wilson’s Batson claim, which relied primarily upon the McMahon tape to establish that McMahon had engaged in purposeful discrimination in striking black venirepersons. The following summary follows the organization of the Court’s decision:

Batson step one: The Court relied upon the explicit admissions in the McMahon tape to find that Wilson had established a prima facie Batson violation. Of the 16 people struck by McMahon, 9 were black, the race of the remaining 7 is unknown. McMahon's testimony at the evidentiary hearing before the District Court failed to convincingly refute this finding.

Batson step two: The Court found that, given that 20 years had elapsed since Wilson’s trial, the explanations offered by McMahon at the evidentiary hearing were sufficient to carry the Commonwealth’s minimal burden in offering some semblance of a race-neutral explanation for each person struck.

Batson step three: The Court again relied upon the tape in affirming the District Court’s decision that McMahon had, in fact, struck jurors based on race. The tape reveals a longstanding practice of McMahon, and the Court found no reason to believe that McMahon was following a different practice during Wilson’s trial. Finally, at step three of the Batson analysis, the Court states that Wilson’s "burden is to show that it is more likely than not that McMahon did so with respect to at least one of the jurors he struck. . . . We agree with the District Court that Wilson has carried this burden."

The Court ultimately affirms the District Court’s grant of habeas relief, stating that the facts of the case coupled with the McMahon tape "give[] rise to an almost unavoidable inference that the prosecutor engaged in prohibited discrimination."