Does a prosecutor’s Batson violation preclude retrial on double jeopardy grounds?
Com. v. Edwards, 239 A.3d 112 (Pa. Super. 2020) (unreported), allocatur granted Jan. 26, 2021, appeal docket 6 EAP 2021
Edwards was convicted of robbery, conspiracy to commit robbery, carrying firearms without a license, carrying firearms on the public streets of Philadelphia, and possessing an instrument of crime, and one count each of attempted murder, aggravated assault, and conspiracy to commit aggravated assault. On direct appeal, he raised a challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), based on the Commonwealth’s use of its peremptory challenges to strike African-Americans from the jury. Superior Court decided in 2018 that Edwards demonstrated a Batson violation by showing the Commonwealth struck at least one juror with discriminatory intent, vacated Edwards’ judgment of sentence and remanded the case for a new trial.
On remand Edwards filed a motion to dismiss, arguing retrial was barred on double jeopardy grounds because the Commonwealth’s Batson violation served no other purpose than to deprive him of a fair trial and subvert the truth determining process.
On appeal from the trial court’s denial of the double jeopardy claim, Superior Court acknowledged a recent Supreme Court decision (Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020)), which held that, in addition to settled law that a prosecutor’s intentional conduct undertaken to prejudice a defendant raises double jeopardy concerns, reckless disregard of the constitutional rights of the defendant can also raise double jeopardy concerns. However, the Superior Court concluded it was bound by its holding in Commonwealth v. Basemore, 875 A.2d 350 (Pa. Super. 2005), in which it held that a Batson violation does not per se bar retrial on double jeopardy grounds, and affirmed, concluding:
[T]he Pennsylvania Supreme Court has not addressed the overarching holding from Basemore, that “nowhere in the approximately twenty years of Batson jurisprudence has there been any suggestion that a Batson violation so subverts the truth seeking process as to implicate double jeopardy concerns.” Basemore, 875 A.2d at 357. As this reasoning remains valid we are bound by it. We conclude that Edwards is not entitled to relief in this case.
Slip Op. at 9.
The Supreme Court has granted allocatur to decide:
Does the reasoning and rationale contained within this Honorable Court’s recent decision (May 19, 2020) in Commonwealth v.  Johnson, [231 A.3d 807 (Pa. 2020)], apply to a Batson violation, thereby precluding a retrial based upon double jeopardy principles?
For more information, contact Kevin McKeon or Dennis Whitaker.