was presented at the hearing, and the trial judge stated that although he remembered making a determination at the time of jury selection that the peremptory challenges at issue were race-neutral, he could not remember the specific jurors excluded).
In reaching this determination, I find, in summary, the following factors to be significant:
(1) The explanation given by Mr. Barnes for his use of a peremptory challenge to excuse the sole prospective black juror was entirely subjective, based upon his evaluation of the prospective juror's alleged apprehension about serving as a juror on the case. The explanation contained an element of race-conscious evaluation of the juror. Particularly careful scrutiny of the explanation was therefore essential.
(2) Judge Rogowski had not presided at the voir dire, and so he was unable to base his assessment of Mr. Barnes' state of mind on any personal observation of the demeanor of the prosecutor, or of the struck juror, at the time the peremptory challenge was exercised.
(3) Mr. Barnes' recollection of the circumstances of his peremptory challenge of the sole black prospective juror was far from complete. He could not recall what reason she had given for her alleged concern about serving as a juror, nor, with any specificity, what Judge Dillon had said to her to encourage her to serve. As a result, Mr. Bryant's counsel had no real opportunity, at the reconstruction hearing, to obtain any useful information from Mr. Barnes concerning the extent to which his subjective assessment of the suitability of the juror was based on her actual or suspected discomfort with the race of the defendant and the alleged victim.
(4) Mr. Barnes' recollection of the voir dire proceedings was so limited that Mr. Bryant's counsel could obtain almost no information from him (i) about the characteristics of other prospective jurors or those who were ultimately seated on the jury, (ii) about his use of peremptory strikes to excuse other prospective jurors, or (iii) about any reasons that Judge Dillon may have given for excusing some of the prospective jurors, but not the only possible black juror, from service. As a result, there was no basis for making any comparison between Mr. Barnes' subjective assessment of the suitability of the prospective black juror and his corresponding evaluation of any other prospective or seated juror.
(5) The trial court clerk's voir dire minutes, entered into evidence at the reconstruction hearing, contained no reference to any bench conferences with prospective jurors, and contained no information about Judge Dillon's reasons either for excusing certain jurors or for encouraging the prospective black juror to serve.
(6) No other evidence was presented at the reconstruction hearing.
When considered as a whole, these factors compel the conclusion that Mr. Bryant did not receive a full, fair, and adequate hearing on his Batson claim in state court. Judge Rogowski's finding that Mr. Barnes' peremptory challenge of the only prospective black juror was not motivated by considerations of race is therefore not entitled to a presumption of correctness under 22 U.S.C. § 2254(d)(6). Because adequate reconstruction of the voir dire was not accomplished, Judge Rogowski erred in reaching any conclusion as to Mr. Barnes' state of mind at the time of the peremptory challenge.
For the reasons given above, petitioner Allen Bryant has succeeded in demonstrating that he did not receive a full, fair, and adequate hearing of his Batson claim in state court. The passage of time has made reconstruction of Mr. Bryant's voir dire impossible. Accordingly, a writ must be granted, and Mr. Bryant given a new trial. Brown v. Kelly, 973 F.2d at 121; United States v. Alcantar, 897 F.2d at 438. If the passage of time has rendered a new trial impossible, then Mr. Bryant must be released from confinement.
The court will meet with counsel for the petitioner and the respondent on June 18, 1996, at 3:00 p.m. The Clerk is directed to stay the entry of judgment until after the June 18 meeting.
JOHN T. CURTIN
United States District Judge
Dated: May 30, 1996