"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed&"
U.S. Constitution, 6 th Amendment
It has been almost two decades since a Philadelphia jury sentenced a youthful Donald Hardcastle to death. On a cold, wintry December day in 1982, a jury of grimfaced strangers convicted him of two counts of murder, arson and burglary.
Hardcastle, a dark-skinned North Philadelphian, had every reason to think of that tight-faced jury as a bunch of strangers, for few of them looked like him. They were mostly pink-complexioned, and from a part of the city where most of the residents were of a similar pinkish hue.
This was by design, not accident. For the lawyer for the State strove mightily to remove virtually every person of color from the jury panel (even at least one dark-skinned Italian, it seemed). Of her fifteen peremptory challenges used, twelve were for African Americans. That means roughly 87% of the government's peremptories were used against black persons, to remove them from the jury panel. Hardcastle's jury, who would choose liberty or death, was one that the Philadelphia DA's office officially purged of almost all blacks.
Hardcastle went to over five different courts in Pennsylvania's state courts, two PCRA petitions before the Court of Common Pleas, once to the Pennsylvania Superior Court, and twice to the Supreme Court of Pennsylvania, where he argued mostly one thing: the improper and racially discriminatory removals of a number of African-Americans from his jury panel. All were denied. After 1986, his argument was considerably strengthened by a decision from the U.S. Supreme Court, called Batson v. Kentucky , where the majority declared it unconstitutional for the state to remove a potential juror on the basis of race. Hardcastle was elated, for although his trial was before the Batson case, the arguments were essentially the same. So he raised his claim in every court he could get it into.
For 15 years after the Batson decision, every court he went to spit on him, and he remained under the ever present threat of death. Time after time. No. Denied. Dismissed. Rejected. No. ( No, Nigger. ) He went before over 19 judges in almost 20 years and got spit on, every time.
Until now. In late June 2001, a federal judge found that at least half of his jury panel was removed in violation of the Batson decision, and granted habeas corpus relief.
What Judge John R. Padova found was that the DA's office engaged in "intentional discrimination" and used spurious reasoning to justify the removal of blacks from his jury panel. The Judge wrote:
"The Court also finds as fact based on the record that the prosecutor engaged in intentional discrimination with respect to the two jurors for whom no record-based potential reasons were found, Kim Richards and Lisa Stewart. Lisa Stewart testified that she was a housewife with one child living in West Philadelphia, and that she would follow the same law and weigh the evidence fairly. Several white female jurors who the prosecutor explicitly found acceptable also testified to being homemakers with children and living in Philadelphia. Kim Richards testified that she was a single, 26-year-old white female juror who had attended two years of college and worked as an accountant for an insurance company. The record reveals no credible basis other than race for distinguishing between Stewart or Richards and their respective white counterparts." Hardcastle v. Horn , No. Civ. A. 98-CV-3028, slip op. at 21; 2001 WL 722781 at 18, (E.D.Pa. June 27, 2001).
Was the twentieth judge who heard Hardcastle's case somehow a genius, able to see what nineteen others had not? I don't think so.
Judge Padova is obviously a bright guy, but he was once a common pleas court judge some years ago, and therefore very similar, in some ways, to the 19 others. The critical difference is that this federal judge was the first unelected judge to hear his case. All the others were elected judges.
The other judges, each of whom swore on a Bible to protect and defend the Constitutions of the United States and the Commonwealth of Pennsylvania, instead protected their political careers by making political decisions on an unpopular death penalty case, rather than legal decisions dictated by the Batson decision.
Five courts. Nineteen judges. Nineteen years. What happened in Hardcastle can be seen in every state of the union.
It is not justice. It is a perversity of justice. For almost 20 years, Mr. Hardcastle lived under the shadow of death following a trial that violated the Constitution of the United States. For almost 20 years, the Constitution was put on hold.
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