                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-17-1994

Johnson v. Love
Precedential or Non-Precedential:

Docket 94-7168




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                     N0. 94-7168


                  MELVIN L. JOHNSON

                          v.

       WILLIAM LOVE, Acting Superintendent;
THE ATTORNEY GENERAL FOR THE STATE OF PENNSYLVANIA

                      Appellants


 On Appeal From the United States District Court
     For the Middle District of Pennsylvania
       (D.C. Civil Action No. 91-cv-00775)


                Argued August 30, 1994

  BEFORE:    STAPLETON and GREENBERG, Circuit Judges,
             and ATKINS,* District Judge

        (Opinion Filed    November 17, 1994)




                   William R. Scullion (Argued)
                   Deputy Prosecutor
                   Office of the District Attorney
                   York County Courthouse
                   28 East Market Street
                   York, PA 17401
                     Attorney for Appellants

                   James V. Wade (Argued)
                   Office of the Federal Public Defender
                   100 Chestnut Street, Suite 306
                   Harrisburg, PA 17101
                     Attorney for Appellee
*Honorable C. Clyde Atkins, United States District Judge for the
Southern District of Florida, sitting by designation.
                       OPINION OF THE COURT



STAPLETON, Circuit Judge:


          This habeas corpus case comes to us for the second time

after having been remanded to the district court to allow the

state prosecutor to explain his peremptory challenge of a black

venirewoman in the petitioner's murder trial.   The district court

found the explanation unsatisfactory and ordered the Commonwealth

of Pennsylvania to retry Melvin Johnson within 90 days or release

him from custody.   The Commonwealth appealed, and we stayed the

effectiveness of the district court's order pending appeal.   We

will affirm the judgment of the district court.



                             I.   FACTS

          Melvin Johnson is black.   He was convicted of second

degree murder, robbery, burglary, theft, aggravated assault, and

criminal conspiracy by a jury in the Court of Common Pleas for

York County, Pennsylvania.   The victims of these crimes were an

elderly white man and his sister, both of whom were beaten by

their assailants.   The male victim was known to have solicited

sexual favors from young black boys over a period of time prior

to his death.
          The venire for the jury consisted of fifty-two people,

only three of whom were black.     After five white women and one

white man had been seated as jurors, the first black member of

the venire, Joyce Orr, was called for voir dire questioning.     She

gave ambiguous responses to the questions of the prosecutor, Mr.

Rebert, concerning the death penalty.      The trial judge sought to

clarify her views on that subject, and the prosecutor, without

waiting for clarification, exercised a peremptory challenge to

exclude her.1

1
.   The following colloquy took place:

               Do you have any strong feelings against
          the death penalty that would prevent you from
          serving on a Jury in this case?

          A.    No.

          Q. Do you think the death penalty is
          justified in certain circumstances?

          A.    No.

          Q.    You don't think it is justified?

          A.    No.

                               *   *   *

               MR. REBERT: I would request a challenge
          for cause on that basis, Your Honor.

               THE COURT:    We will ask a few questions
          of the witness.

                 Although you do not feel it is justified
          --

               MR. REBERT: Excuse me. I will exercise
          a preemptory [sic] challenge, Your Honor.
          Before another juror had been seated, Vanessa Ferguson,

another black member of the venire, was called.   After

ascertaining that she did not know the defendant or his counsel;

that she did not oppose capital punishment; that she had "no

strong feelings one way or the other about homosexuality"; and

that neither she, a relative, nor a friend had been either a

police officer or a victim of a crime, Mr. Rebert exercised a

peremptory challenge to exclude her.   The defense objected and

the following exchange occurred:
               MR. HARRIS: Your Honor, we oppose the
          Commonwealth's exercising this particular
          challenge. We believe he has exercised it
          because this particular Juror is black, the
          same race of the Defendant.

               In the Commonwealth's question of the
          Juror about the death penalty, I think she
          indicated if the evidence showed that, she
          could vote that way. Of course, I don't
          think the Commonwealth has any real reason
          other than race in this particular case to
          exercise said challenge. So we oppose it.

               MR. REBERT: Your Honor, preemptory
          [sic] challenges are sometimes arbitrary and
          even capricious by definition. I have a
          basis for challenging this Juror. There is
          no challenge for cause. I have a right to a
          preemptory [sic] challenge and I'm going to
          exercise it. If I have to state all my
          reasons on the record, I would be happy to.

               THE COURT: The Courts have already
          ruled -- the appellate Courts have already
(..continued)

                THE COURT:   Fine. . . .

A. 25-26 (Appeal No. 92-7139).
           ruled that preemptory [sic] challenges are
           preemptory [sic] challenges; and as far as
           the Court is concerned, the preemptory [sic]
           challenge is just that. . . . We will not
           question either side's preemptory [sic]
           challenges.

A. 37-38 (Appeal No. 92-7139).


           The remaining black member of the venire, Lucius

Breland, was not called until a jury had been seated and the

court was attempting to find alternates.   He testified

unambiguously that he could not impose the death penalty even if

he believed it to be called for under the judge's instructions.

The prosecutor challenged for cause and Mr. Breland was excused

by the court.

           The defense renewed its Batson challenge in a post
trial motion, but to no avail.   Having exhausted his state

appeals, the defendant began a habeas corpus proceeding in the

District Court for the Middle District of Pennsylvania based on

28 U.S.C. § 2254.   The district court accepted the trial court's

post trial conclusion that the defendant had failed to make a
prima facie showing under Batson and denied the writ of habeas

corpus.   The defendant appealed to this court.

           After recounting the facts and the history of the

proceedings, this court held that the district court had erred in

finding itself bound by the state court's conclusion that no

prima facie case of discrimination had been presented under

Batson v. Kentucky, 476 U.S. 79 (1986).    It then noted

information supplied by counsel at oral argument:
                 At oral argument before this court, both
            counsel indicated that the prosecutor is
            still available and could appear at a habeas
            corpus hearing in the district court. In
            response to a question from a member of the
            panel, counsel for the appellee stated:
            "Yes, the district attorney is available and
            as a practical matter that would be the most
            expeditious thing to do in these cases."


Johnson v. Love, No. 92-7139, Mem. Op., filed June 18, 1993, at

App. 100.   Based on this understanding, the court did not

undertake an analysis of whether the record revealed a prima

facie case of discrimination:
          [W]e see no need to insist on a wooden
          adherence to a procedural process intended
          for the benefit of the state when a
          prosecutor chooses to proceed expeditiously
          and put a defendant's challenge to rest. In
          distinguishing a previous decision by this
          Court, the appellee's brief in the case at
          hand reads: "Here the District Attorney
          offered to place his reasons for the use of a
          peremptory challenge on the record at the
          time of the strike." Had that offer been
          accepted, it seems likely the issue presently
          before us would have long since been
          resolved.

                 We think that, in these circumstances,
            continuing uncertainty in this case can be
            resolved by a hearing in the district court
            at which time the prosecutor's offer can be
            accepted, albeit belatedly, without the
            necessity of inquiring into whether a prima
            facie case was established. After the
            prosecutor states his reasons for the
            peremptory strike, the district court may
            evaluate his explanation in light of Batson
            and its progeny.

App. 101-02.
          On remand, Mr. Rebert was called to testify at an

evidentiary hearing.   He disclaimed any recollection of his

reason or reasons for challenging specific jurors.    He did offer

the following comments on the voir dire process in this case:
          A. . . . In this particular case . . . I was
          concerned about the victim and how potential
          jurors might feel about the victim, he was
          not a stellar type individual, and I had some
          concerns about the type of people who were
          going to sit in judgment on that case when
          this victim was involved in the kind of
          activity he was involved in.

               Obviously, you, know, it was a pretty
          brutal crime, and I didn't think that the
          jurors would have much sympathy for the
          alleged perpetrators, but I was very much
          concerned that the victim maybe [sic] more of
          a factor than he should be in this crime.

          Q. Given the victim's activity, whether
          there was any particular trait of a juror
          that you would deem antagonistic to the
          Commonwealth's goal of seeking a death
          penalty?

          A. I don't know that I can say that for
          certain. I think I may have been a little
          bit reluctant, for lack of a better word, as
          far as the women were concerned because this
          was a very distasteful scenario. Any
          homicide obviously is distasteful, but I
          thought the facts of this case would cause
          one to be a little bit more sensitive than
          another to not react well to the Commonwealth
          and to the victim. That's a pretty generic
          statement, but that's about all as I recall
          about this selection process.

                              *   *   *

          Q. Let's move to Vanessa Ferguson. The
          record shows that she was Commonwealth Strike
          No. 6, and she was black. Why did you strike
          her from the panel?
            A. I do not specifically recall. I can say
            that I indicated on the record that I did
            have my reasons. I can say in all candor to
            the Court that those reasons were not race
            related in the sense that I was striking her
            simply because she was black. However, I
            cannot say that I specifically recall what
            those reasons were. As I said earlier, the
            victim of a crime was not an individual who I
            felt would get a lot of sympathy from people,
            certainly not a lot of sympathy from a young
            black girl; however, I cannot specifically
            recall the reason for my challenge.

App. 28-29, 30-31.


            On cross examination, Mr. Rebert confirmed his lack of

specific recollection:

            Q.   Well, in any event, the reasons that you

            were prepared to state to Judge Erb back in

            October of 1986 you cannot specifically

            recall those reasons right here today?

            A.   No, sir, I can't.

            Q. And the notes that you might have made
            concerning what the strikes are are not in
            the file?

            A.   No, sir.


App. 33.

            Mr. Rebert's testimony concluded with the following

exchange:
                 THE COURT: Mr. Scullion, do you have
            any other examination of this witness?

                 MR SCULLION: No, Your Honor.    The rest
            will be left to argument.
                 THE COURT:   Thank you very much, Mr.
            Rebert.

                 THE WITNESS: If I may point something
            else out, Your Honor. The other thing that
            perhaps has not been noted for the record,
            counsel for the Defendant was also black and
            that was another factor that I had to take
            into consideration when selecting a jury. I
            certainly would not strike a black juror
            simply because the juror was black or because
            of the overall facts of this case and the
            fact that the subject was black and the
            attorney was black, that would not have been
            my reason for the strike.


App. 37-38.

            The district court found that Mr. Rebert had no

specific recollection as to his reason for excluding Ms.

Ferguson.     It noted that Rebert purported to recall "an overall

strategy of eliminating women from the jury panel 'due to the

brutal nature of the crime and the non-sympathetic background of

the victim.'"    App. 93.   The district court concluded, however,

that this did not satisfy Batson's requirement of "a 'clear and

reasonably specific' explanation of [the prosecutor's]

'legitimate reasons' for exercising" his peremptory challenge.

476 U.S. at 98 n.20.      The district court further concluded that,

in light of the fact that the first five jurors seated, as well

as one alternate, were women, this "proffered reason miserably

fails to square with the actual events that transpired during

voir dire."    App. 93.   Because the district court viewed the

Commonwealth as having a burden under Batson of coming forward
with a non-discriminatory explanation of its challenge of Ms.

Ferguson and because it rejected as pretext Mr. Rebert's

speculation regarding his reason for that challenge, the district

court ordered the release of the petitioner in the event he was

not promptly retried.



              II.   BATSON STEP ONE:   Prima Facie Case

           We begin with the holding of Batson and the teachings

of Hernandez v. New York, 500 U.S. 352 (1991), concerning the

procedure to be followed when the holding of Batson is invoked

during voir dire.   Batson held that the prosecution violates the

Equal Protection Clause of the Fourteenth Amendment when it

exercises a peremptory challenge in a racially discriminatory

way.   When a peremptory challenge is objected to on Batson

grounds, a three step process ensues:
          First, the defendant must make a prima facie
          showing that the prosecutor has exercised
          peremptory challenges on the basis of race
          . . . . Second, if the requisite showing has
          been made, the burden shifts to the
          prosecutor to articulate a race-neutral
          explanation for striking the jurors in
          question. . . . Finally, the trial court
          must determine whether the defendant has
          carried his burden of proving purposeful
          discrimination.


Hernandez, 500 U.S. at 358-59.   There is thus a threshold

requirement before the court is to call upon the state to explain

its challenge; the defendant must show that there is "some reason

to believe that discrimination might be at work."    United States
v. Clemmons, 892 F.2d 1153, 1156 (3d Cir. 1989), cert. denied,

496 U.S. 927 (1990).

           The Commonwealth argues before us that it has no duty

under Batson to come forward with a non-discriminatory

explanation.    This is true, it maintains, because petitioner

never presented a prima facie case under Batson.   Petitioner

counters that the prima facie case issue became moot when the

prosecutor offered at trial to explain his reason for challenging

Ms. Ferguson and that, in any event, the record reflects a prima

facie case.    We agree with the Commonwealth that the prosecutor's

unaccepted offer at trial did not moot the prima facie case

issue.   We conclude, however, that the Commonwealth's renewed

offer before this court and its acceptance rendered the prima

facie case issue moot.    We further conclude that, even if we were

not bound under the applicable precedents to assume the existence

of a prima facie case, the record in this case, taken as a whole,

reflects one.



                                 A.

           As the plurality opinion of the Supreme Court in

Hernandez indicates, the issue of whether the threshold
requirement of a prima facie showing has been met becomes moot if

the prosecution voluntarily places its explanation on the record

and the trial court makes the rulings required at the second and

third step of a Batson analysis:
          Once a prosecutor has offered a race-neutral
          explanation for the peremptory challenges and
          the trial court has ruled on the ultimate
          question of intentional discrimination, the
          preliminary issue of whether the defendant
          had made a prima facie showing becomes moot.


Hernandez, 500 U.S. at 359.

          We applied this mootness rule in United States v.

Uwaezhoke, 995 F.2d 388 (3d Cir. 1993), cert. denied, 114 S. Ct.

920 (1994), where the prosecutor, in response to a question from

the court before it had ruled on the prima facie case issue,

explained why he had exercised his peremptory challenge.   We

there observed:
               While we continue to stress the
          importance of the first step of Batson, we
          note that any issue regarding the existence
          of a prima facie showing of discrimination
          becomes moot where, as in this case, the
          prosecutor offers an explanation of the
          peremptory challenge before the district
          court has "expressly address[ed] the prima
          facie issue". In so holding, we follow the
          conclusion of the plurality in Hernandez
          . . . . If the government is found at any
          subsequent stage of the case either to have
          tendered an explanation that is not race
          neutral or to have acted with racial animus,
          the conviction must be overturned without
          regard to whether the defendant established a
          prima facie case.


Id. at 392.

          We made a similar observation in United States v.

Clemmons, 892 F.2d at 1156:
          [O]nce a prosecutor attempts to explain a
          peremptory challenge, we believe the trial
          and reviewing courts should look to the
          entire record to determine if intentional
          discrimination is present. If the
          prosecutor's explanation raises more concern
          than it puts to rest, courts cannot
          effectively close their eyes to that fact by
          simply deciding that the defendant has not
          made out a prima facie case.


          Petitioner urges that this case is like Hernandez,

Uwaezhoke, and Clemmons and that the prima facie case issue

became moot when Mr. Rebert voluntarily offered at trial to

explain his reasons for challenging Ms. Ferguson.    We believe

petitioner misreads those cases, however.    There is a substantial

difference between an explanation that is placed on the record

and subjected to judicial scrutiny and an offer to explain that

is rejected.   In each of these three cases, the court was

addressing a situation in which the prosecutor had explained his

challenge and the court had made a finding at trial as to whether

intentional discrimination had played a role.   In such

situations, a reviewing court must address the second and third

Batson issues, i.e., whether the prosecutor's articulated reasons

were race neutral and whether those reasons were a mere pretext
to hide intentional racial discrimination.   Where, as here, the

prosecutor offered to explain his reasons, but was prevented by

the court from doing so, we think the considerations that

prompted the mootness holding in Hernandez, Uwaezhoke, and

Clemmons are not implicated.

          When the prosecutor has tendered an explanation and the

trial court has ruled on the neutrality and bona fides of that

explanation, the only circumstance in which the presence or
absence of a prima facie case could become legally relevant is

where, at the post-trial motion or appellate review stages, there

is room to debate the correctness of the trial rulings with

respect to the neutrality of the explanation or the prosecution's

good faith in representing that it was the true reason for the

challenge.    In such circumstances, public confidence in the

criminal process will be jeopardized if the reviewing court is

permitted to avoid the ultimate issue of whether invidious

discrimination occurred by relying on the absence of a prima

facie case.

          The same concern is not implicated where, as here, the

prosecution offers to explain its challenge, but the trial court

forecloses it from doing so and forges ahead with the trial.     In

such circumstances, we do not believe that public confidence will

be jeopardized if a reviewing court subsequently determines that

the record provides no substantial reason to believe that

discrimination may have occurred.

          Contrary to the petitioner's suggestion, we do not read

Hernandez, Uwaezhoke and Clemmons as holding that the prosecution

always loses the right to rely upon the absence of a prima facie
case whenever it voluntarily offers to explain, regardless of

whether it was permitted to do so.   Moreover, we believe such a

rule would be unfair.   Where the prosecutor is foreclosed by the

court from putting his explanation on the record, in the absence

of a prima facie case, there is simply no justification for
putting the burden on the state of coming forward with a

satisfactory explanation in post-conviction relief proceedings

that may occur many years after the conviction.



                                B.

           These conclusions regarding the effect of the

proceedings before the trial court do not end our mootness

inquiry.   The appellate proceedings in this case were unusual.

While the Commonwealth's offer to explain its reasons for the

preemptory challenge of Ms. Ferguson was not accepted by the

trial court, that offer was renewed before this court and it was

accepted in our earlier opinion.     On remand, the Commonwealth

attempted an explanation.   The district court then concluded that

the Commonwealth's explanation, in the words of the Clemmons

court, "raise[d] more concern than it put[] to bed."    892 F.2d at

1156.   At that point, the prima facie case issue clearly became

moot under Hernandez, Uwaezhoke and Clemmons, and, accordingly,

this court is no longer free to dispose of this matter on the

basis of that issue.

           As we explained in Uwaezhoke and Clemmons, to allow the
absence of a prima facie case to be case dispositive when the

record raises serious questions about the prosecutor's

motivations would defeat one of Batson's principal purposes -- to

provide assurance to the defendant and the community that

criminal judgments are not tainted by invidious discrimination.
Where the record as a whole as ultimately developed permits a

reasonable argument that the judgment is so tainted, the issue of

taint must be resolved; it cannot be avoided by a finding that

the defendant failed to present a prima facie case.    Accordingly,

consistent with the teachings of Hernandez, Uwaezhoke and

Clemmons, we can only proceed on the assumption that such a

showing was made.   This means that the petitioner's conviction

cannot stand in the absence of a race-neutral explanation from

the Commonwealth for its exclusion from the petit jury of the

second black venireperson.   Batson, 476 U.S. at 97.



                                C.

          While we thus believe that our precedents require us to

assume that petitioner made a prima facie showing of

discrimination, we would be constrained to reach the same result

even if we were free to address the prima facie case issue.       At a

minimum, the rationale of the cases we have discussed would

require us to consider the entire record, including the hearing

on remand, in order to determine whether a prima facie case was

present, i.e., whether there is reason to believe that

discrimination may have been at work in this case.     When Mr.

Rebert's remarks at that hearing are added to the other record

evidence supporting an inference of discrimination, we conclude

that there is enough evidence to require the Commonwealth to meet

the explanation burden imposed by Batson.
           As the Supreme Court pointed out in Batson, when making

a Batson challenge, a member of a racial group that has

traditionally been the victim of racial discrimination in our

society is entitled to rely upon that history as well as on "the

fact . . . that peremptory challenges constitute a jury selection

practice that permits 'those to discriminate who are of a mind to

discriminate.'"   Batson, 476 U.S. at 96 (quoting Avery v.

Georgia, 345 U.S. 559, 562 (1953)).   In addition, one who objects

to a challenge on the basis of Batson is entitled to rely on "any

other relevant circumstances" tending to support an inference of

discrimination.   Id. at 96.   When Mr. Rebert's challenge of Ms.

Ferguson is put in context using the record as a whole, we

believe there is substantial circumstantial evidence tending to

support such an inference.

           Mr. Rebert was prosecuting a case in which the

defendant was black.   It was also a case in which the defendant's

attorney was black, and we know from Mr. Rebert's testimony

during the remand hearing that this "was another factor that [he

felt he] had to take into consideration when selecting a jury."

App. 38.   The crime involved in this case was one of violence,

and both victims were white.   The jury would learn that one of

these victims had solicited sexual favors from young black boys.

In such circumstances, a prosecutor still burdened with a

stereotypical view of the world might well believe that a black
juror would be more sympathetic to the defendant and less

sympathetic to the victims than would a white juror.

          Six jurors had already been seated when Mr. Rebert was

first presented with the choice between exercising a peremptory

challenge and allowing a black person to sit as a juror.    At that

point, he still had more than six peremptory challenges

remaining.   It must have been apparent to him that he might well

have the capability of causing the jury to be without black

representation.

          Mr. Rebert's first opportunity to challenge a black

person came when Ms. Orr was called.   He ascertained that she did

not know the defendant or his counsel.   He then asked about her

views on capital punishment and received an answer that the

court, at least, thought to be ambiguous.   After the court had

undertaken to seek clarification but before the matter had been

clarified, Mr. Rebert exercised a peremptory challenge.    While

the Commonwealth understandably attributes this challenge to Ms.

Orr's views on capital punishment, Mr. Rebert's failure to allow

her to explain her views on that subject raises a question as to

whether that was the basis of his decision.   The trial record

suggests no reasons for the challenge other than Ms. Orr's race

and views on capital punishment.

          The only other time Mr. Rebert was faced with a choice

between exercising a peremptory challenge and letting a black

person be seated as a juror, he once again exercised a peremptory
challenge.   The trial record reveals nothing about Ms. Ferguson

that might cause a prosecutor to be concerned about her

objectivity.2   When asked at the remand hearing about the

challenge of Ms. Ferguson, Mr. Rebert could only indicate that he

would not expect a "young black girl" to have a lot of sympathy

for a man who solicited sexual favors from young black boys.    He

did not explain why he believed a young black girl would have

less sympathy for such a person than a young white girl.



2
 . During the hearing on remand, Mr. Rebert indicated that he
had reviewed the trial transcript and he referred the court to
the following segment of the defense's questioning of Ms.
Ferguson which, according to Mr. Rebert, gave him "cause for
concern," App. 32:

          Q. I'm going to ask you a few questions;
          again, not to embarrass you. If the evidence
          -- you hear the evidence and the evidence
          showed that Mr. Johnson did not participate
          in the killing, participate in the beating,
          do you feel that you could vote an acquittal
          of not guilty in that case?

          A.    I would have to hear the evidence.

          Q. Listen to my question. You heard the
          evidence, you listened to it and the evidence
          showed that he did not participate in the
          killing, he did not beat the man, do you feel
          that you could vote an acquittal of not
          guilty of that particular charge in that
          case?

          A.    Yes, I could.

A. 35 (Appeal No. 92-7139). While petitioner was not the person
who administered the beatings to the victims, we do not view Ms.
Ferguson's answers as raising concern about her objectivity.
          We are thus presented with a case in which a prosecutor

harboring discriminatory views would not only have the

opportunity to discriminate but would also have strong motivation

for doing so.    On both occasions when the prosecutor had the

choice between excluding or including a black person, he chose

exclusion.   The record reveals nothing about either prospective

juror that would clearly cause a prosecutor free of racial

stereotyping to question his or her objectivity.

          The circumstantial evidence we have cited does not

mandate a conclusion that discrimination occurred, but the issue

before us is whether there is sufficient reason to believe that

discrimination may have been at work here to require the state to

come forward with an explanation of its actions.      We conclude

that there is.    We acknowledge the possibility that, if Mr.

Rebert's memory of the trial was still intact, the Commonwealth

might well have provided an innocent explanation.      It is

unfortunate that this is not the case, but the passage of time

cannot fairly be laid at petitioner's feet and it would be even

more unfortunate if petitioner's conviction were allowed to stand

without the assurance of a bias-free trial that Batson requires.



                III.   BATSON STEP TWO:   Race-Neutral Explanation

Turning to the required second step in a Batson

analysis, we are presented with two issues:      (1) whether the

Commonwealth's failure to produce a prosecutor with a specific
recollection concerning the reason for the challenge alone

requires a conclusion that it has failed to meet its second-step

burden of providing a race-neutral explanation, and (2) if not,

whether the explanation tendered by the Commonwealth met that

burden.



                                  A.

          During the hearing before the district court, Mr.

Rebert admitted that his memory had faded and that he could not

specifically recall the reason for exercising a peremptory

challenge against Ms. Ferguson.    The district court concluded

that "[t]he prosecutor's failure to remember his reason for

excluding Ferguson eliminates the need for the court to evaluate

his reason under Batson and, more importantly, entitled Johnson

to a new trial."   App. 90.   This case does not require that we

rely on this view of the law, and we expressly decline to endorse

it.

          In Batson, the Court instructed that at the second step

"the burden shifts to the State to come forward with a neutral

explanation for challenging black jurors."       476 U.S. at 97.    In

Hernandez, the Court described this burden as the burden "to
articulate a race-neutral explanation."       500 U.S. at 358-59.

Both of these descriptions came in the context of instructions on

the state's burden at trial when a Batson objection is made and

supported by a prima facie case.       In this context, the prosecutor
who has just made the peremptory challenge is present and his or

her "articulation" of an explanation is, of course, competent

evidence of the reason or reasons for the challenge.

          Given the context of the Supreme Court's observations

and the purpose of the state's burden at this stage, when a court

is called upon to apply Batson in a post-trial context, as we are

called upon to do here, we believe it must insist that the state

not only articulate a race-neutral explanation but also come

forward with competent evidence of the prosecutor's state of mind

when making the challenge.3   We are unprepared to hold, however,

that the state's burden can never be carried without direct

evidence from the decisionmaking prosecutor regarding his or her

state of mind.

          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 unwilling to rule out

the possibility that the state may be able to satisfy its step

3
 . The Court in Batson analogized the state's burden to that of
the employer in an employment discrimination case after the
plaintiff has tendered a prima facie case. The employer's burden
in that context, while frequently described as the burden of
articulating a legitimate reason for the adverse employment
action, is a burden of production. St. Mary's Honor Center v.
Hicks, 113 S. Ct. 2742, 2748 (1993).
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.4

          While we thus conclude that circumstantial as well as

direct evidence can be used to carry the state's burden of

production at the second step in a Batson analysis, Batson does

require that the state's evidence, direct or circumstantial, be

4
 . While we have no occasion to comment here on the sufficiency
of the state's evidence in United States v. Nicholson, 885 F.2d
481 (8th Cir. 1989), the Eighth Circuit Court of Appeals there
held that the state had met its second step burden with
circumstantial evidence. The possibility that the state's burden
may be met in this way was also recognized by the Court of
Appeals for the Second Circuit in United States v. Alvarado, 923
F.2d 253, 256 (2d Cir. 1991).

    The district court in this case relied on our opinion in
Harrison v. Ryan, 909 F.2d 84 (3d Cir.), cert. denied, 498 U.S.
1003 (1990), for its holding that Johnson was automatically
entitled to a new trial because of the prosecutor's failure to
recall his reason for excluding Ferguson. Harrison is
distinguishable, however, because the prosecutor in that case
offered no explanation for excluding one of the six black
venirepersons he had struck from the jury, but simply asserted at
a hearing before a federal magistrate that he could not recall
his reasons. It was based on the prosecutor's assertion that he
did not know the reason he struck a black venireperson that this
court affirmed the order for a new trial. Id. at 987. We do not
read Harrison to suggest that a state cannot be permitted to
reconstruct the prosecutor's rationale for excluding a juror
during a later Batson hearing when the prosecutor admits to
having no recollection of his motivations at the time.
such that, if credited, it will establish that invidious

discrimination played no role in the prosecutor's challenge.

Stated conversely, 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, Uwaezhoke, 995 F.2d

at 392, or would otherwise be inadequate as a matter of law to

support the conviction.   Batson, 476 U.S. at 98 (neutral

explanation unrelated to the particular case to be tried or one

consisting solely of the prosecutor's denial of discrimination

inadequate as a matter of law).    The state's circumstantial

evidence in this case failed to meet this requirement.



                                  B.

          The explanation tendered by the Commonwealth at the

remand hearing, even if taken at face value, does not provide

assurance that race played no role in Mr. Rebert's decision to

challenge Ms. Ferguson.   During that hearing, Mr. Rebert

testified that he was trying to strike jurors who might not be

sympathetic with the petitioner's victim.    He was especially

concerned with the objectivity of women jurors because of the

anticipated evidence at trial regarding the solicitation of

homosexual favors from young black males by the victim.     In

explaining his reasons for striking Ferguson, Mr. Rebert said
          As I said earlier, the victim of the crime
          was not an individual who I felt would get a
           lot of sympathy from people, certainly not a
           lot of sympathy from a young black girl.


App. 31.

           On its face, this explanation for the striking is not

race-neutral.     It is based on the assumption that Ms. Ferguson's

objectivity would be impaired in part because she was black and

because the deceased victim of petitioner's crime had victimized

black children.    We find this assumption indistinguishable in

principle from an assumption that Ms. Ferguson's objectivity

would be impaired because the defendant is black, an assumption

that the Equal Protection Clause clearly forbids.    Batson, 476
U.S. at 97.   Both assumptions are based on a stereotypical view

or intuition that black people, because of their race, will

relate to other black persons in a way that may preclude them

from basing a verdict solely on the relevant evidence.    In

somewhat similar circumstances, we have held that the state's

explanation was not race-neutral.    See Jones v. Ryan, 987 F.2d

960, 973-74 (3d Cir. 1993).
           In addition, Mr. Rebert gave further testimony that

precludes a finding that the Commonwealth's explanation was race-

neutral.   At the close of the hearing, he volunteered that

counsel for the defendant was also black and that this was

another factor that he "had to take into consideration when

selecting a jury."    App. 38.   Although Mr. Rebert insisted that

he would not have striken Ms. Ferguson because she was a member

of the same minority group as the defendant and the defendant's
attorney, on its face, the quoted comment indicates to us that

race did play a role in Mr. Rebert's decisions regarding

peremptory challenges.

            The facially race-based nature of Mr. Rebert's comments

requires us to conclude that the Commonwealth has failed to meet

its burden of providing a race-neutral explanation for the

challenge of Ms. Ferguson.



                                IV.

            Accordingly, the judgment of the district court will be

affirmed.
