The opinion of the court was delivered by: CURTIN
Allen Bryant, who is imprisoned at Groveland Correctional Facility in Sonyea, New York, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 25, 1983, Mr. Bryant, an African-American, was convicted, in Erie County Court, of first-degree rape. He challenges his conviction on the grounds that at the time of jury selection, the prosecutor discriminated on the basis of race in exercising a peremptory challenge to excuse the only black prospective juror from service.
In this case, the question of whether the prosecutor's use of a peremptory challenge was race-motivated is a particularly sensitive and difficult one. Mr. Bryant, a black man with no previous criminal record, was alleged to have raped a young white woman. The alleged rape took place at around 3:00 a.m., in the young woman's car, outside a singles bar in Buffalo, New York. Mr. Bryant and the woman had met at the bar, and had engaged in at least some conversation. Apparently, Mr. Bryant led or allowed the woman to believe that he was a member of the Buffalo Bills football team. There was no dispute that Mr. Bryant and the woman engaged in sexual intercourse after leaving the bar. The central issue at trial was whether the intercourse was consensual, or was forced. There were no witnesses to the alleged rape. After the alleged rape, the young woman simply drove home and went to bed. She did not talk to anyone about the incident until she went to work the following day. The young woman and Mr. Bryant both testified at the trial, and they told markedly different stories. Evidently the young woman had thought she had had intercourse with a member of the Buffalo Bills. At trial, there were questions as to her motive for claiming that she had been raped. Much depended on the jury's evaluation of the credibility of both the young woman and Mr. Bryant. Under the circumstances, it must be acknowledged that Mr. Bryant may have been at a considerable disadvantage in being tried before an all-white jury. An especially careful review of the jury selection process is warranted. Unfortunately, however, adequate reconstruction of the circumstances surrounding the prosecutor's use of a peremptory challenge against the sole prospective black juror is not possible.
It is undisputed that Mr. Bryant has established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). In contention is (1) whether a hearing held in Erie County Court on June 14, 1990, was adequate to reconstruct the voir dire proceedings, and (2) whether the evidence presented at that hearing was sufficient to support the presiding judge's conclusion that the prosecutor's use of a peremptory challenge to excuse the sole black prospective juror was not motivated by impermissible considerations of race.
Mr. Bryant was indicted on May 4, 1982, on a charge of Rape in the First Degree. A jury trial was conducted before Erie County Court Judge John A. Dillon in October 1983. Jury selection took place on October 18-19. On the first day, October 18, ten jurors were selected. The only prospective black juror was excused by means of a peremptory challenge by the prosecutor, Assistant District Attorney Richard J. Barnes. No stenographic record was made of the October 18 voir dire proceedings.
At the start of proceedings on October 19, 1983, defense counsel John J. Carney moved for a mistrial:
At this time, I would like to bring to the Court's attention the fact that yesterday, in jury selection, approximately forty potential voir dire jurors were called to the courtroom; that they were questioned by both Mr. Barnes, the district attorney, and myself; that approximately eighty percent of them were white, suburban housewives; that twenty percent were white males, principally from the suburbs; that there was one black woman on the panel, who was questioned by myself and Mr. Barnes, and who was excused by the prosecution in this case peremptorily, without any cause or reason, and I feel, Your Honor, that this jury panel is not representative; that it does not afford this defendant, particularly in view of the fact that we have a black man who is accused of rape by a white girl, and I question very seriously whether or not under that set of circumstances, he can get a fair trial.
On that basis I move for a mistrial at this time.
Trial Transcript, October 19, 1983, pp. 17-18. The motion was denied pursuant to New York Criminal Procedure Law § 270.10(2), on the grounds that a motion attacking a jury panel must be made in writing and prior to the commencement of jury selection. Id. at 19.
Following denial of the motion, jury selection was completed, and the trial went ahead with a jury consisting entirely of white men and women. Mr. Bryant was convicted on October 25, 1983, but absconded before the scheduled sentencing on December 2, 1983. He was not sentenced until December 18, 1986, when he received an indeterminate term of four to twelve years' imprisonment.
Mr. Bryant appealed his conviction to the New York State Supreme Court, Appellate Division, Fourth Judicial Department, on the grounds that the prosecutor's peremptory striking of the only black venireperson denied him equal protection of the law. In his appeal brief, he argued (1) that he had set forth a prima facie case of discrimination under Batson, and (2) that due to the passage of time between his trial and the hearing of his appeal, the lack of any transcript of the voir dire or any other contemporaneous factual record, and the trial judge's retirement, the usual remedy of remand for a reconstruction hearing was inappropriate. He maintained that his conviction should be reversed, and a new trial granted. Appellate brief, dated November 16, 1989, pp. 10-12.
Batson applies retroactively to cases not yet final on April 30, 1986, the date it was decided. Brown v. Kelly, 973 F.2d 116, 118 (2d Cir. 1992) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987)), cert. denied, 506 U.S. 1084 (1993). The Appellate Division was therefore able to consider Mr. Bryant's Batson claim. In a memorandum opinion dated March 16, 1990, the Fourth Department found that he had set forth a prima facie case of discrimination under Batson, but rejected the argument that a reconstruction hearing was inappropriate, reserving decision and remitting the matter to the Erie County Court for a reconstruction hearing. People v. Bryant, 159 A.D.2d 962, 552 N.Y.S.2d 778 (4th Dept. 1990). Mr. Bryant's motion for reargument and reconsideration was denied on May 11, 1990.
On June 14, 1990, a Batson reconstruction hearing was conducted in Erie County Court. Because Judge Dillon had retired, the hearing was held before another judge, the Honorable John V. Rogowski. At the start of the proceedings, Mr. Bryant's counsel, Chrysanthe E. Vergos, again noted Mr. Bryant's objection to reconstruction, stating that "we feel that coming seven years after the original jury selection, in view of the fact that the voir dire was never transcribed, and the fact that the trial judge has retired, ... that a remand is inappropriate at this time." H.T. 2.
At the reconstruction hearing, the State called a single witness, Richard J. Barnes, the former Assistant District Attorney who had prosecuted Mr. Bryant. Mr. Barnes remembered the general nature and some of the particular circumstances of the case. H.T. 3, 8-10. He said that the circumstances were "a bit unusual," and there was "some notoriety" to the case because initially, a member of the Buffalo Bills football team had been a suspect. H.T. 9-10. Mr. Barnes recalled that it was his second jury trial as a prosecutor, that it was his first and only trial before Judge Dillon, and that he did not regularly prosecute violent felonies. H.T. 8-9. But beyond that, his recollection of the jury selection was quite limited. He had made notes at the time of the voir dire, and those notes were available prior to and at the time of the reconstruction hearing. See Item 34, p. 18 and Exs. A, B, and C; H.T. 17, 21. In addition at the hearing he was asked to review the trial court clerk's voir dire minutes, in which the names of the challenged, excused, and accepted jurors were listed. See Item 34, pp. 18-19; H.T. 14-15, 18, 19. Nevertheless, he was unable to identify by name the black prospective juror he had excused by peremptory challenge (H.T. 4-5); nor could he recall how many peremptory challenges he had exercised, or that he had exercised five such challenges against men and one against a woman (H.T. 16); nor could he remember anything about any of the jurors who were finally seated (H.T. 15-16).
Despite this limited recollection of the voir dire as a whole, Mr. Barnes was able to give an account of the circumstances of his peremptory challenge of the sole black potential juror. In response to questioning by Assistant District Attorney Diane M. LaVallee, he testified as follows:
Q. Okay. And can you tell the Court, to the best of your recollection, what happened with this particular female juror?
A. I recall during the questioning of either this juror or perhaps before we even got to this juror, that she requested to approach the bench to speak to Judge Dillon.
Q. And were you present during that conversation with Judge Dillon?
A. Yes, I recall myself and Mr. Carney being asked to come up for a bench conference with this juror.
Q. What was the nature of that conversation?
A. All right, I don't recall at this time specifically what she said, but she did express some concern about being on the jury panel, and had some concern about whether or not she could be fair. I don't recall specifically why, but I generally recollect she was uncomfortable with the case, is the way she put it, and felt she would not -- she'd be better suited to be on another jury.
Q. Do you recall the judge's instructions or discussions with her at that point?
A. Again, I don't recall specifically what he said to her, but I know that he encouraged her to try -- to answer truthfully whether or not she felt she could be fair, that -- words to the effect that they don't like to lightly dismiss a juror, and under all the circumstances, could she try to be fair, and did she feel she could be fair, and I recall her saying something to the effect, well, yeah, she thought she could, she thought she could, after the side bar with the judge.
Q. What were your impressions of this particular juror, as far as seeing her to be fit for this -- the selection to the actual jury in this case, after the side bar?
A. Well, I wasn't sure, to be honest with you, what the nature of her problem with the case was. I -- I had feelings both ways. I had a feeling, initially, that perhaps was -- she was uncomfortable with the black/white situation, it was a white woman victim, Mr. Bryant obviously was a black male. Then I felt maybe she was uncomfortable with what the nature of the charges are, it was a rape. I don't know, we didn't -- Judge Dillon didn't pry into exactly what ...