[J-53-2021] [OAJC: Baer, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 6 EAP 2021
:
Appellee : Appeal from the Order of Superior
: Court entered on July 29, 2020 at
: No. 3429 EDA 2018, affirming the
v. : Order entered on September 11,
: 2018 in the Court of Common Pleas,
: Philadelphia County, Criminal
DERRICK EDWARDS, : Division at Nos. CP-51-CR-0002611-
: 2013, CP-51-CR-0002614-2013, CP-
Appellant : 51-CR-0002617-2013, CP-51-CR-
: 0002815-2013, CP-51-CR-0002820-
: 2013, CP-51-CR-0002853-2013, CP-
: 51-CR-0002862-2013 and CP-51-
: CR-0002864-2013
:
: ARGUED: December 7, 2021
CONCURRING AND DISSENTING OPINION
JUSTICE DONOHUE DECIDED: April 12, 2022
The Opinion Announcing the Judgment of the Court (“OAJC”) recognizes that a
prosecutor striking a juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986)
(holding that striking even one potential juror for racial reasons violates the Equal
Protection Clause), definitionally involves “prosecutorial misconduct that violates the
defendant’s individual right to equal protection because it denies the safeguards that a
trial by jury is intended to secure.” OAJC at 30. We granted allowance of appeal to
address whether that intentional racial discrimination justifies barring retrial pursuant to
the Pennsylvania Constitution’s Double Jeopardy Clause.1 I concur with the Court’s
important conclusion that Pennsylvania’s Double Jeopardy Clause can bar retrial for
Batson violations. I respectfully dissent because I find no basis to treat some Batson
violations as more excusable than others. Every Batson violation as an intentional act
of racial discrimination2 which has no place in our justice system. I would hold that
discharge is always required when a Batson violation occurs.
I.
Batson is rooted in a case decided 142 years ago, Strauder v. West Virginia, 100
U.S. 303 (1879), which “explained that the central concern of the recently ratified
Fourteenth Amendment was to put an end to governmental discrimination on account of
race.” Batson, 476 U.S. at 85 (citing Strauder, 100 U.S. at 306-07). Neither the
Nation’s history of racial discrimination nor the efforts to reverse it is amenable to a tidy
summary. It suffices to say that the lofty aim of Strauder was not self-executing and
courts had to maintain vigilance. Batson itself proves the point as that case overruled
parts of Swain v. Alabama, 380 U.S. 202, 219 (1965). In Swain, the defendant argued
that state prosecutors intentionally excluded black jurors. The evidence established that
an average of six to seven black men were in the pool of potential jurors in that county,
1 “No person shall, for the same offense, be twice put in jeopardy of life or limb[.]” PA.
CONST. art. I, § 10.
2 “Equal justice under law requires a criminal trial free of racial discrimination in the jury
selection process.” Flowers v. Mississippi, 139 S. Ct. 2228, 2242 (2019). Thus, its
protections extend to members of any race. “A defendant of any race may raise
a Batson claim, and a defendant may raise a Batson claim even if the defendant and
the excluded juror are of different races.” Id. at 2243. See also Powers v. Ohio, 499
U.S. 400 (1991) (holding that a white defendant successfully established Batson
violation when prosecutors struck African American jurors based on race).
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but none served as an actual juror since about 1950. In Swain’s case, eight black men
were potential jurors but two were excused and six struck by the prosecutor. Id. at 205.
Swain alleged that (1) the use of peremptory challenges was unconstitutional and (2)
that the consistent and systematic exclusion of black jurors was unconstitutional.
Regarding the systematic exclusion of black jurors, the Court decided that even if Swain
established a prima facie case, “it is readily apparent that the record in this case is not
sufficient to demonstrate that the rule has been violated by the peremptory system as it
operates in Talladega County.” Id. at 224. Swain therefore recognized that the Equal
Protection Clause would be violated if a prosecutor used a peremptory strike for a racial
reason but essentially made it impossible for a defendant to prove it.
Batson entrenched Swain’s Equal Protection Clause holding while overruling its
proof requirements. The cases applying Swain “placed on defendants a crippling
burden of proof,” which “largely immun[ized]” peremptory challenges from constitutional
scrutiny. Batson, 476 U.S. at 92. The inability to prove a constitutional violation was so
pervasive that Justice White, who authored Swain, filed a concurring opinion agreeing
that the proof requirements of Swain should be overruled. The Swain decision “should
have warned prosecutors that using peremptories to exclude blacks on the assumption
that no black juror could fairly judge a black defendant would violate the Equal
Protection Clause,” but the “practice of peremptorily eliminating blacks from petit juries
in cases with black defendants remains widespread, so much so that I agree that an
opportunity to inquire should be afforded when this occurs.” Id. at 101 (White, J.,
concurring). The Batson Court thus allowed defendants to make individual challenges
to peremptory strikes.
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II.
In the case before us, Derrick Edwards established a Batson violation and
received a new trial. He now seeks discharge. To resolve this appeal, a critical
question involves how the Equal Protection Clause violation interacts with the Double
Jeopardy Clause contained in our charter. Batson, like the cases before it, was
explicitly grounded in the Fourteenth Amendment and its Equal Protection Clause, not
the Sixth Amendment right to a fair trial. See, e.g., Batson, 476 U.S. at 84 n.4 (“We
agree with the State that resolution of petitioner’s claim properly turns on application of
equal protection principles and express no view on the merits of any of petitioner’s Sixth
Amendment arguments.”); id. at 93 (“As in any equal protection case, the burden is, of
course, on the defendant who alleges discriminatory selection of the venire to prove the
existence of purposeful discrimination.”) (quotation marks and citation omitted); id. at
102 (“The Court’s opinion cogently explains the pernicious nature of the racially
discriminatory use of peremptory challenges, and the repugnancy of such discrimination
to the Equal Protection Clause.”) (Marshall, J., concurring).
It seems clear that the United States Constitution does not compel discharge
upon a finding of a Batson violation. The closing paragraph of Batson stated, “If the trial
court decides that the facts establish, prima facie, purposeful discrimination and the
prosecutor does not come forward with a neutral explanation for his action, our
precedents require that petitioner's conviction be reversed.” Batson, 476 U.S. at 100.
This certainly goes far to explain why the parties do not cite a case in which any court
has barred retrial for a Batson violation. See Commonwealth’s Brief at 16 (“Our
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research has uncovered no opinion that has discharged a defendant as the remedy for
a Batson violation, nor do defendant and his amici cite any.”).
But this case does not ask us what the United States Constitution requires.
Instead, Edwards relies on a line of cases interpreting the Pennsylvania Constitution.
Our precedents diverge from the United States Supreme Court regarding what types of
prosecutorial acts warrant discharge instead of retrial. Per Oregon v. Kennedy, 456
U.S. 667 (1982), “[p]rosecutorial conduct that might be viewed as harassment or
overreaching, even if sufficient to justify a mistrial on defendant's motion … does not bar
retrial absent intent on the part of the prosecutor to subvert the protections afforded by
the Double Jeopardy Clause.” Id. at 675-76. It is “[o]nly where the governmental
conduct in question is intended to ‘goad’ the defendant into moving for a mistrial” that a
defendant is permitted to raise the double jeopardy bar. Id. at 676.
This Court departed from Kennedy in Commonwealth v. Smith, 615 A.2d 321
(Pa. 1992), wherein we barred retrial based on the prosecutor’s intentional withholding
of exculpatory evidence. The Smith Court expressed uncertainty as to whether the
Kennedy Court would bar retrial based on federal law. Id. at 325. Instead, the Smith
Court grounded its holding in the Pennsylvania Constitution.
We now hold that the double jeopardy clause of the
Pennsylvania Constitution prohibits retrial of a defendant not
only when prosecutorial misconduct is intended to provoke
the defendant into moving for a mistrial, but also when the
conduct of the prosecutor is intentionally undertaken to
prejudice the defendant to the point of the denial of a fair
trial. Because the prosecutor’s conduct in this case was
intended to prejudice the defendant and thereby deny him a
fair trial, appellant must be discharged on the grounds that
his double jeopardy rights, as guaranteed by the
Pennsylvania Constitution, would be violated by conducting
a second trial.
[J-53-2021] [OAJC: Baer, C.J.] - 5
Id.
As signaled by the Smith Court’s declaration that “our view is that the
prosecutorial misconduct in this case implicates the double jeopardy clause of the
Pennsylvania Constitution,” id., determining whether a prosecutor “overreached”
typically involves judgment calls. Our decision in Commonwealth v. Martorano, 741
A.2d 1221 (Pa. 1999), illustrates that point. Applying Smith, this Court granted
discharge based on the aggregate effect of the prosecutor’s misconduct, which
included: consistent references to evidence that the trial court ruled was inadmissible,
defying other court rulings, and insisting fingerprint evidence linked the defendant to the
crime despite the fact no such evidence existed. Justice Saylor dissented, arguing that
the Smith rule “lacks sufficient definition to serve as a workable standard,” and predicted
“that reviewing courts will have differing interpretations as to whether application of the
bar is warranted, thus resulting in uneven application.” Id. at 1224, 1226 (Saylor, J.,
dissenting). Indeed, the Kennedy Court acknowledged that the high Court’s “earlier
opinions” had “suggest[ed] a broader rule,” and criticized those earlier formulations as
“broad and somewhat amorphous[.]” Kennedy, 456 U.S. at 676-78.
Most recently, in Commonwealth v. Johnson, 231 A.3d 807, 819 (Pa. 2020), we
concluded that under the Pennsylvania Constitution “prosecutorial overreaching
sufficient to invoke double jeopardy protections includes misconduct which not only
deprives the defendant of his right to a fair trial, but is undertaken recklessly, that is,
with a conscious disregard for a substantial risk that such will be the result.” Id. at 826.
This supplements Smith’s holding “relating to tactics specifically designed to provoke a
mistrial or deny the defendant a fair trial.” Id. Simultaneously, those decisions “clarified
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that not all intentional misconduct is sufficiently egregious to be classified as
overreaching” to bar retrial. Id. at 822. The remedy largely remains a judgment call.
III.
On the important point of whether “overreaching” encompasses Batson
violations, I concur with the OAJC. We explained in Johnson that Martorano “clarifi[ed]
that Smith’s holding was not limited to its facts, but encompassed any bad-faith
misconduct intended to deprive the defendant of a fair trial.” Johnson, 231 A.3d at 824
n.11. In this regard, “the holding of Smith appears to be deliberately nonspecific,
allowing for any number of scenarios in which prosecutorial overreaching is designed to
harass the defendant through successive prosecutions or otherwise deprive him of his
constitutional rights.” Martorano, 741 A.2d at 1223. A Batson violation, bad faith
conduct intended to deprive the defendant of a fair trial, surely qualifies as prosecutorial
overreaching that deprives the defendant of his constitutional rights. On this point, I
agree with the dissent in Commonwealth. v. Basemore, 875 A.2d 350 (Pa. Super. 2005)
(“Basemore II”), which argued for the outcome advanced by Edwards today:
Batson violations impact upon the “fundamental fairness of a
trial.” Basemore, supra, 744 A.2d at 734. Racial
discrimination in jury selection is more than trial error; it
results in a structural defect, Tankleff v. Senkowski, 135 F.3d
235, 248 (2nd Cir.1998), affecting the framework within
which the trial proceeds, depriving a defendant of the “basic
protections” that a trial is designed to protect, and
undermining the reliability of the verdict. Basemore, 744
A.2d at 734, referring to Neder v. United States, 527 U.S. 1,
119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Active discrimination
by litigants on the basis of minority stereotypes during jury
selection “invites cynicism respecting the jury’s neutrality and
its obligation to adhere to the law.” J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 114 S.Ct. 1419, 1427, 128 L.Ed.2d 89
(1994) citing Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364,
113 L.Ed.2d 411 (1991).
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Id. at 358 (Joyce, J., dissenting).
A Batson violation is an intentional act and represents a conscious act of racial
discrimination. It is, by definition, a bad faith decision. And the entire point of exercising
a peremptory strike in a racially discriminatory fashion is to remove a juror whom the
prosecutor thinks will be an obstacle to a conviction. It is true that every peremptory
strike by the prosecution is designed to tip the scales towards a conviction, but striking a
juror on the basis of race in violation of Batson is, as a matter of law, not a tool in the
toolbox for seeking an advantage or removing an obstacle.
Our decision in Smith approvingly quoted Commonwealth v. Starks, 416 A.2d
498, 500 (Pa. 1980), which explained that “overreaching is not an inevitable part of the
trial process and cannot be condoned. It signals the breakdown of the integrity of the
judicial proceeding, and represents the type of prosecutorial tactic which the double
jeopardy clause was designed to protect against.” Molding a jury based on race
pollutes the entire proceeding, both from the perspective of the defendant as well as the
unconstitutionally struck juror who suffers the indignity of racial discrimination. But it not
only signals a breakdown of the specific trial. It also harms society. A jury must be
chosen indifferently “to secure the defendant’s right under the Fourteenth Amendment
to ‘protection of life and liberty against race or color prejudice.’ ” Batson, 476 U.S. at 87
(citation omitted). The Powers v. Ohio Court remarked that “[j]ury service preserves the
democratic element of the law, as it guards the rights of the parties and ensures
continued acceptance of the laws by all of the people.” Powers v. Ohio, 499 U.S. at
407. A Batson violation, an intentional act of racial discrimination, is easily
encompassed by Smith and its progeny.
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In my view, where the OAJC fatally missteps is by concluding that only some
Batson violations qualify as overreaching. Despite the conclusive finding that Batson
was violated, the OAJC finds that Edwards “has not demonstrated prosecutorial
overreaching, which signals that the judicial process has fundamentally broken down.”
OAJC at 33. Respectfully, I cannot agree with this notion. Any Batson violation causes
a fundamental breakdown. The only way to say it does not is to decide that some
unspecified level of racial discrimination is acceptable, when the only tolerable level is
none at all.
The OAJC responds that this is an unfair characterization because “it suggests
that every state and federal decision granting a new trial as a remedy for a Batson
violation (as opposed to precluding retrial) affirmatively accepts some unspecified level
of racial discrimination in jury selection.” Id. at 31.3 Respectfully, this response
misapprehends our task. We are not choosing a remedy for this Batson violation.
Instead, we are asked to decide whether the Pennsylvania Double Jeopardy Clause’s
enhanced protections extends to Batson violations, and then, if so, what the remedy
should be. The fact that other courts have not recognized a Double Jeopardy Clause
violation and thus have not required discharge for a violation of Batson is irrelevant for
3 The courts to which the OAJC refers did not recognize a Baston violation as a
subversion by the prosecutor of the protections afforded by the Double Jeopardy Clause
and thus, retrial was the established remedy for the violation. Unlike the OAJC, those
courts were not selectively applying alternative remedies for recognized Batson
violations.
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purposes of determining whether the Pennsylvania Constitution demands a different
result.4
4 Justice Mundy claims that a per se rule is not warranted because “the error itself”
should determine the remedy, and additionally points out that “[i]n other instances of
prosecutorial misconduct, the remedy is the same whether it is discovered during trial or
post-conviction.” Concurring Op. at 3 (Mundy, J.). For example, the Concurrence notes
that evidentiary errors, whether identified by the trial court or on appeal, result in a new
trial. However, trial errors are simply not comparable to a prosecutor committing a
Batson violation. See Burks v. United States, 437 U.S. 1, 15 (1978) (explaining that
“[v]arious rationales have been advanced to support the policy of allowing retrial to
correct trial error”). Nor is the fact that discharge is unavailable “when the Batson
violation was remedied pretrial,” Concurring Op. at 3, a forceful point as jeopardy has
yet to attach; there cannot be “double jeopardy” when the defendant was never in
jeopardy. This attempt to manufacture an incongruity additionally fails because the
defendant who is judged by a tainted panel has suffered a harm that the defendant who
received a new jury panel has not. To the extent a per se rule encourages trial courts to
be more vigilant in policing Batson claims, all the better. Moreover, the statistics cited
by Justice Mundy highlighting the relatively few successful Batson challenges reported
in Pennsylvania since that case was decided (Id. at 2 n.3) militate in favor of recognizing
discharge for the violation of our Double Jeopardy Clause, not against it.
Additionally, the Concurrence’s weighing Batson violations against society’s interest in
prosecuting crime avoids the question of whether a prosecutor’s intentional racially
discriminatory strike qualifies as “overreaching.” Our Johnson opinion cogently
explained when prosecutorial errors cross the line:
[W]hereas prosecutorial errors are an “inevitable part of the
trial process,” prosecutorial overreaching is not. Just as
important, overreaching signals that the judicial process has
fundamentally broken down because it reflects that the
prosecutor, as representative of an impartial sovereign, is
seeking conviction at the expense of justice. As such … it is
the very type of “tactic which the double jeopardy clause was
designed to protect against.”
Commonwealth v. Johnson, 231 A.3d 807, 824 (Pa. 2020) (citations omitted). The
Concurrence’s description of a Batson violation as “undoubtedly harmful,” Concurring
Op. at 3 n.3, is simply an alternative way of saying it cannot amount to “overreaching.”
Aligning Batson errors with other errors, like erroneous evidentiary rulings that do not
warrant discharge, treats Batson violations as an inevitable part of our judicial system.
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Once the OAJC determined that a Batson violation can violate the Double
Jeopardy Clause warranting discharge, it logically follows that all Batson violations
require discharge. Otherwise, we are requiring courts to engage in the unseemly task
of deciding just how much discrimination is acceptable in the jury selection process as
reflected by the belief that “[t]he nature of the Batson violation is relevant to our double
jeopardy analysis concerning whether such a violation may constitute prosecutorial
overreaching.” OAJC at 21 n.17. The “nature of” every Batson violation is a racially
discriminatory act and thus the OAJC must be saying that some of these acts are more
acceptable than others. Thus, while the OAJC claims its decision “makes clear that
distinct standards govern Batson claims and claims alleging violations of double
jeopardy,” id. at 31, that clarity exists only within that declaration. It is impossible for me
to comprehend the notion that intentional racial discrimination by a prosecutor, a
minister of justice, is ever anything but so reprehensible that it always qualifies as
“overreaching.” Whereas cases like Smith and Martorano quintessentially involve
judgment calls, a finding of a Batson violation is, per se, overreaching and retrial must
be barred.
Instead of accepting, as we must, the unappealed decision of the Superior Court
and its finding of a Batson violation,5 the OAJC attempts to avoid the seemingly
inevitable conclusion that any Batson violation qualifies as overreaching by relitigating
whether the prosecutor really committed a Batson violation. True, the OAJC
acknowledges that the Superior Court’s conclusion that Edwards established a Batson
5No petition for allowance of appeal was filed by the Commonwealth. See Docket, 436
EDA 2015.
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violation constitutes the law of the case. However, its opinion then attempts to
undermine the Superior Court’s conclusion:
Significantly, in connection with the morning panel of jurors,
the prosecutor accepted six of the first eight African
Americans on the panel, and exercised her peremptory
challenges by striking two African Americans. Jury Strike
List, 10/28/2014. Relating to the afternoon panel of jurors,
the prosecutor struck five African Americans and one juror
whose race was indicated as “Other.” Id. Accordingly, the
prosecutor utilized all eight peremptory challenges on
individuals of a minority race, with seven of the eight strikes
against African Americans.
Notably, Appellant did not challenge all seven peremptory
strikes exercised by the Commonwealth against African
Americans during voir dire and did not contend that the
seven strikes were racially driven. Thus, we should not view
all seven strikes as though they were exercised in a racially
discriminatory manner. Rather, Appellant challenged only
four of the prosecutor’s peremptory strikes of African
Americans, and the trial court, the tribunal that observed the
jury selection process firsthand, accepted as race neutral all
the reasons the prosecutor offered for striking these jurors,
and denied the Batson challenge, finding no evidence of
purposeful discrimination.
OAJC at 32 (emphasis added).
This is an apologia for the prosecutor’s use of peremptory challenges and
suggests that the Superior Court may have reached the wrong result.6 If the OAJC is
6 To the extent that the OAJC suggests that the three other peremptory strikes were not
discriminatory, the Superior Court had no need to address those other strikes. The only
thing that the Superior Court found was that the prosecution offered race-neutral
reasons for all four peremptory strikes at issue. Thus, the relitigation is additionally
flawed because it does not address the possibility that the other three strikes were also
racially discriminatory. In this regard, it is important to point out that the Superior Court
pertinently noted the prosecutor’s use of all peremptory challenges to strike black jurors,
stating that “the probability of the Commonwealth striking such a disproportionate
number of African–Americans by chance is extremely low.” Commonwealth v.
Edwards, 177 A.3d 963, 975 (Pa. Super. 2018).
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indeed accepting the finding of a Batson violation as the law of this case then I cannot
endorse the implicit notion that Batson violations are somehow less reprehensible if only
one act of racial discrimination took place.7 Respectfully, the OAJC errs by concluding
that Batson violations exist on a spectrum, with some resulting in prosecutorial
overreaching and discharge while other violations do not. “In the eyes of the
Constitution, one racially discriminatory peremptory strike is one too many.” Flowers v.
Mississippi, 139 S. Ct. 2228, 2241 (2019).
IV.
All Batson violations should result in discharge. Each such violation represents
an act of intentional racial discrimination that has no place in our judicial system. We
cannot make a judgment call that some racial discrimination is acceptable. Just as
Justice White agreed in Batson that the time had come to overrule portions of the Swain
case that he penned, the time has come for this Court to declare that, under the
Pennsylvania Constitution, a mere retrial is not enough. Batson exists because Swain
failed to stamp out racial discrimination in the jury selection process. And thirty-five
years later, we see that Batson violations still occur. If discharge is warranted for
Batson violations—and the OAJC agrees that it is—it is warranted in all Batson cases. I
cannot endorse the notion that the judicial system should decide, as a matter of law, just
how much racial discrimination by a prosecutor is tolerable in jury selection on a case-
by-case basis. The only acceptable answer is none. I would therefore adopt a rule
where a defendant is tried by a jury tainted in composition by any Batson violation,
7 In a criminal trial where a unanimous verdict is required for conviction, the impact of
any one juror has an obvious material effect.
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Pennsylvania’s Double Jeopardy Clause would be violated by retrial and thus the
defendant must be discharged.
Justice Wecht joins this concurring and dissenting opinion.
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