with the total number of black venirepersons questioned and removed by the prosecution. He specifically alleged that the prosecution had used its peremptory challenges in a systematic, discriminatory fashion and not on the basis of their personal history or behavior during the voir dire. Although petitioner's counsel did not make a timely objection to seating the jury, he did file a post-trial motion to vacate promptly after McCray and again after Batson was decided. In both instances, he was denied an evidentiary hearing, at which he could have completed the record regarding the content of the voir dire of the venirepersons to bolster his claim that nothing in their responses or demeanor made them unsuitable jurors.
The fact that the petitioner failed to preserve a record of the voir dire and made no showing that the questions and answers indicate bias by the prosecution is not dispositive. Alvarado II placed no reliance on the voir dire, and the statistical disparity which the Second Circuit found sufficient for a prima facie case is not as great as it is here. Significantly, the Wilson court had no knowledge of the total number of minority members of the jury panel nor of the final composition of the jury to indicate whether any pattern of strikes occurred. In this case, systematic exclusion of black jurors was both specifically alleged and readily inferred from the numbers offered.
Finally, the respondent argues that because the trial judge in this case supervised the voir dire, his determination that the prosecutor did not use racial bias in exercising peremptory challenges is entitled to great deference by a reviewing court. Item 27 at 14-15. See also Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991). However, when Justice Marshall was first presented with the motion, he explicitly stated that he had no recollection of the jury panel or the voir dire process. Transcript, Argument on Motion to Vacate Judgment, January 14, 1985, at p.25. Thus, his decision to deny the motion without holding a hearing could not have rested on his own observations of the voir dire process and provides no basis for this court to defer to factual determination.
III. Prosecution's Reasons for Peremptory Challenges
Once the petitioner establishes a prima facie case, the burden shifts to the prosecution to provide race-neutral reasons for the peremptory challenges of black potential jurors. "A neutral explanation . . . means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez, 500 U.S. at 360.
The passage of time in this case has made it equally difficult for the prosecution to meet its burden. In response to McCrory's motions to vacate, the prosecutor denied exercising any peremptory challenges based solely on the race of the prospective juror but never explained why he asked that the black venire members be excused. After ten years and countless criminal trials, the prosecutor has no independent recollection of any of the jurors, the voir dire, or his reasons for the challenges he made at McCrory's trial. Item 40 at 25. He does have his notes, but ultimately, they could not provide the inferences necessary to rebut the prima facie challenge. The prosecutor frankly admitted at the hearing that the notes were insufficient to help him reconstruct the reasons for striking particular jurors. "That a lawyer would forget why he or she had struck particular jurors years earlier is not surprising, especially when the then-controlling law required no reasons. Nonetheless, when an attorney offered virtually nothing beyond 'I do not remember,' . . . the striking party [has] failed to carry its burden." Polk v. Dixie Ins. Co., 972 F.2d 83 (5th Cir. 1992) (citation omitted).
However, the prosecution is entitled to rely on circumstantial evidence to counter a prima facie showing when a Batson analysis is only applied post-conviction. See Johnson v. Love, F.3d , 1994 WL 644089 at 8 (3d Cir. Nov. 17, 1994); Alvarado II 923 F.2d at 256. In United States v. Nicholson, 885 F.2d 481 (8th Cir. 1989), noted with approval in Brown v. Kelly, 973 F.2d 116 (2d Cir. 1992), cert. denied, U.S. , 113 S. Ct. 1060 (1993), the court permitted a prosecutor who could not recall specific reasons for exercising peremptory challenges of particular venirepersons to present a standard set of guidelines by which he generally evaluated potential jurors. The prosecutor stated that he preferred older, married persons with long histories of employment who offered information during voir dire. He then compared those guidelines to the black venire members he excused, noting that each of the three was either single, divorced, or separated. Additionally, one shared the same occupation as the defendant, another had a relative in prison, and the third was involved in a legal action against a federal agency. The Nicholson court found the prosecutor's guidelines to be race-neutral and the comparison of those guidelines to the profiles of the challenged venirepersons sufficiently specific to meet Batson requirements. 885 F.2d at 483-84.
Mr. Belling testified at the hearing that he preferred jurors who were employed and had resided in one location for several years. A review of his voir dire notes indicated no significant differences in lengths of employment or terms of residence between the black venire members stricken from the jury and the white jurors empaneled, although Belling did venture an opinion that he may have struck one juror due to her occupation and place of employment. Belling further testified that the level of education did not matter as much as his impression of the way they thought. He makes his decisions after interacting with the potential juror and listening to his or her answers to everybody's questions. Item 40 at 17. However, he was completely unable to remember, even with the aid of his notes, whether the responses or demeanor of the excused jurors contributed to his decision to challenge them.
Respondent claims that the voir dire notes indicate that the prosecutor seriously considered the qualifications of each juror as an individual. There are no references regarding the race of the venirepersons interrogated. The respondent argues that because the trial was held prior to Batson, the prosecutor would have no reason not to include race in his personal notes if it figured in his determination of whom to challenge. Therefore, the fact that the prosecutor made no such references should lead the court to infer the absence of racial bias in process of selection. Item 27 at 20-24.
The petitioner counters this assertion by pointing out that the prosecutor noted down street names of residences for black, but not white, potential jurors. All the streets listed in the notes are located in predominantly black neighborhoods within the city of Buffalo. The petitioner maintains that the court can infer that the prosecutor found residence in black neighborhoods noteworthy and included it in his consideration of peremptory challenges. Item 25 at 9-10. At the evidentiary hearing, Mr. Belling testified that the judge asked the majority of the questions during the voir dire. Item 40 at 5. He maintained that he never asks people what street they live on and surmised that he wrote down street addresses for certain individuals based on their responses to other questions. Id. at 33-34. He also pointed out that at least one of the street noted was in a "changing" neighborhood at the time of the trial. Id. at 35.
The petitioner also finds evidence of racial consideration in Belling's assertion in a response affidavit to the motion to vacate that "it has been your deponent's experience that in many cases black jurors are preferable when dealing with a 'black on black' crime.'" Plaintiff's Ex. 2. Respondent counters that there is nothing impermissible about this particular kind of evaluation of juries.
The scant additional evidence submitted at the hearing did not result in a preponderant showing for either party. While an inference of differential treatment could be taken from listing street names solely of the black venire members, the inference is diminished by Belling's testimony that he never asks for street names and could not remember why they were offered by certain potential jurors. Belling did provide a possible explanation for excusing one black woman but was unable to testify that this was the reason why he challenged her. In all other respects, Belling's testimony regarding the notes failed to explain the challenges he made. Although the petitioner is correct in asserting that a preference for black jurors for a "black on black" crime might constitute a use of racial criteria for jury selection, the argument does not aid a determination of intent here since, if anything, the prosecutor failed to follow his stated preference.
Thus, the court is left with a possible race-neutral explanation for one black venireperson and no explanations for at least two others. In Harrison v. Ryan, 909 F.2d 84 (3rd Cir.), cert. denied, 498 U.S. 1003 (1990), the court was similarly confronted with a prosecutor who was unable to recall any reason for excusing one of the black members of the jury panel. The court concluded that a new trial was necessary, finding that:
The prosecutor's failure to recall his reason for using a peremptory challenge to strike the juror was insufficient to satisfy the Batson requirement that the "prosecutor . . . must articulate a neutral explanation related to the particular case to be tried" [quoting Batson at 98]. It is certainly not surprising that the prosecutor could not recall his reason given the length of time which passed between jury selection and the Batson hearing. . . . Certain 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. . . .
The exclusion of one black juror from the jury on the basis of race is sufficient to require a new trial pursuant to Batson.