Lark v. Beard

• Decision Date: 30 July 2012
• Docket Number: NO. 01-1252,01-1252
• Parties: ROBERT LARK, Petitioner, v. JEFFREY BEARD, ET AL., Respondents
• Court: U.S. District Court — Eastern District of Pennsylvania

ROBERT LARK, Petitioner, v. JEFFREY BEARD, ET AL., Respondents

NO. 01-1252

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dated: July 30, 2012

CIVIL ACTION

(DEATH PENALTY HABEAS CORPUS)

MEMORANDUM

Padova, J.

I. INTRODUCTION

Before the Court for the second time is Robert Lark's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. On July 3, 2007, we conditionally granted the Petition, finding that the Commonwealth of Pennsylvania failed to satisfy its burden at the second step of the analysis established by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986).¹ See Lark v. Beard, 495 F. Supp. 2d 488, 503 (E.D.Pa. 2007) ("Lark I") vacated sub nom Lark v. Secretary, Pa. Dept. of Corr., 645 F.3d 596 (3rd Cir. 2011) ("Lark II"). On June 16, 2011, the United States Court of Appeals for the Third Circuit vacated our Order granting the Petition. LarkII, 645 F.3d at 629. The Commonwealth did not challenge our finding that Lark established a prima facie case at step one, but confined its challenge to our holding that Lark was entitled to the entry of the conditional writ of habeas corpus because the Commonwealth had not articulated a race-neutral explanation for its strikes at step two. Id. at 620-21. The Third Circuit determined that, notwithstanding the Commonwealth's failure to meet its step two burden of demonstrating a race-neutral ground for its peremptory strike of a minority veniremen, the burden remains on Petitioner to show by a preponderance of the evidence at step three that the prosecutor engaged in purposeful discrimination. Lark II, 645 F.3d at 625-27 (analyzing Johnson v. California, 545 U.S. 162 (2005) and explaining that the prosecutor's lack of response at step two is evidence to be taken into account at step three, but is not, by itself, of such dispositive force that it establishes that there was a Batson violation). Presently before the Court are the parties' additional submissions on the step three issues. We find that Petitioner has satisfied his burden of demonstrating by a preponderance of the evidence that the prosecutor engaged in purposeful discrimination in striking African-American veniremen from his jury. Accordingly, we again conditionally grant the writ.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Third Circuit fully set forth the factual basis for Lark's conviction and the direct and collateral appeal history in Lark II, 645 F.3d at 599-606, which we incorporate by reference herein. To summarize, Petitioner was convicted of first degree murder, possession of an instrument of crime, terroristic threats, and kidnaping in the Court of Common Pleas of Philadelphia County on June 28, 1985, and was subsequently sentenced to death. The convictions resulted from Lark's killing of Tae Bong Cho, and his kidnaping and restraint of Cho's two young children and their mother. Petitioner appealed, and the Supreme Court affirmed his convictions and sentences on May 20, 1988. SeeCommonwealth v. Lark, 543 A.2d 491 (Pa. 1988).

Following extensive state collateral proceedings, Lark filed the instant petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2244, on March 16, 2001, alleging an Eighth Amendment ineffective assistance of counsel claim in connection with both the guilt and penalty phases of his trial, as well as a Fourteenth Amendment Equal Protection claim. Lark II, 645 F.3d at 602 n.9. After determining that Petitioner alleged facts that, if true, would satisfy his Batson step one burden by making a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race, we conducted an evidentiary hearing. Id. at 603.

To support its step two burden, we permitted the Commonwealth to present circumstantial evidence to reconstruct the prosecutor's peremptory strike decision-making process. The prosecutor, having first testified that he had no current recollection of the Lark jury selection, nor any independent or refreshed recollection of the voir dire after having read the voir dire transcript, Lark I at 495, was allowed to testify to his practice of considering certain criteria in exercising peremptory challenges. He identified the following factors that he routinely considered and the reason he considered that factor significant: (1) the neighborhood where the potential juror lived was significant to his decision to exercise a peremptory strike because he did not want jurors who lived near the defendant or near to where the incident occurred (N.T. 11/8/06 at 73-74); (2) the potential juror's employment status, because persons with a job have roots in the community (id. at 82); (3) the potential juror's age, because older jurors are wiser and more responsible (id. at 94); (4) whether the potential juror had relatives that were police officers, which he considered a positive factor (id. at 95); (5) the potential juror's home ownership, because it showed a stake in the community (N.T. 11/9/06 at 10); (6) vocation - he did not want teachers and social workers as jurors (id.); (7) hardship(id. at 48); (8) prior jury experience (id.); (9) whether the juror had been a victim of crime or a witness or defendant in a criminal case (id.); (10) whether the juror knew any potential witness in the trial (id.); (11) whether the juror had any feelings about the death penalty (id.); and (12) whether the potential juror had children the same age as the defendant (N.T. 11/8/06 at 102). The prosecutor denied striking any juror because of his or her race. (N.T. 11/9/06 at 51.) He testified that using race as a factor in jury selection was legally and morally abhorrent to him. (N.T. 11/8/06 at 71-72.)

The prosecutor also testified as to why he thought he may have stricken certain members of the venire, based upon his review of the voir dire transcript. However, even after he reviewed the transcript, the prosecutor could state no reason for striking three African-American veniremen: Shirley Sampson, Florence Williams, and Edison Sisco. Lark II, 645 F.3d at 604-05. We determined in Lark I that the Commonwealth's failure to satisfy its burden of production with respect to the prosecutor's peremptory strikes of Sampson, Williams, and Sisco at step two of the Batson analysis mandated the granting of the writ. Lark I at 503. The Third Circuit agreed that the Commonwealth failed to satisfy its burden of production at step two, Lark II, 645 F.3d at 603; however, the Third Circuit disagreed with our conclusion that the Commonwealth's failure at step two warranted granting the writ. Id. at 626-28. The Third Circuit indicated that, where the passage of time has diminished the prosecutor's recollection of the voir dire, the district court should proceed to the third step of the Batson analysis. Id. at 628.

II. STEP THREE OF THE BATSON ANALYSIS

In Williams v. Beard, 637 F.3d 195 (3d Cir. 2011), the Third Circuit restated the law applicable to step three:

At step three of the Batson analysis, the petitioner must show that "it is morelikely than not that the prosecutor struck at least one juror because of race." Bond [v. Beard, 539 F.3d 256 (3d Cir. 2008)] at 264. To determine whether the petitioner has carried his or her burden, the court must evaluate "all evidence introduced by each side (including all evidence introduced in the first and second steps) that tends to show that race was or was not the real reason" for each strike. Hardcastle [v. Horn, 368 F.3d 246 (3d Cir.2004)] at 259 (quoting Riley v. Taylor, 277 F.3d 261, 286 (3d Cir. 2001) (en banc)); see also Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (explaining that "all of the circumstances that bear upon the issue of racial animosity must be consulted"). Step three ultimately focuses upon the prosecutor's subjective motivation, which ideally includes an assessment of the demeanor and credibility of the various voir dire participants. See Snyder, 552 U.S. at 477, 128 S.Ct. 1203 ("Step three of the Batson inquiry involves an evaluation of the prosecutor's credibility, and the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenges." (alteration in original) (internal citations and quotation marks omitted)).

Williams, 637 F.3d at 215-16. As this discussion makes clear, a key part of our analysis at step three will be determining whether or not we accept the prosecutor's assertion that race played no part in his decision making process. In making this determination, we consider the entire record, including the statistical evidence Petitioner introduced at step one, see id. at 214 (noting that statistical evidence may be sufficient by itself to make out a prima facie case of racial discrimination at step one, citing Jones v. Ryan, 987 F.2d 960, 971 (3d Cir. 1993)), as well as the evidence offered by the Commonwealth at step two, to show what factors the prosecutor ordinarily considered in making peremptory strike decisions. "An explanation that appears race neutral at step two may betray an improper motive if it is invoked to strike African Americans but not other non-black venirepersons exhibiting the same characteristic." Id. at 216.

At step three, we also examine "comparator" evidence, "comparing stricken members of the venire to individuals the Commonwealth deemed acceptable." See id. ("We have previously authorized such an evaluative procedure, explaining, 'A comparison between a stricken black juror and a sitting white juror is relevant to determining whether the prosecution's asserted justificationfor striking the black juror is pretextual.'") (quoting Riley, 277 F.3d at 282; Holloway v. Horn, 355 F.3d 707, 724 (2004)); see also Snyder, 552 U.S. at 479-86, 128 S.Ct. 1203 (performing comparative analysis); Miller-El v. Dretke, 545 U.S. 231, 241-52 (2005) ("Miller-El II") (finding Batson violation based in part on juror comparison evidence).

The Third Circuit in Williams stated that,...