Lark v. Pa. Secretary of Corrections, No. 07-9004 (3d Cir. 2011)

In late 1978, Lark robbed Tae Bong Cho while putting a gun to the head of the victim’s infant child. He was apprehended shortly after the robbery and was charged with the crime. Approximately two months later, Lark murdered Mr. Cho in order to prevent him from testifying against Lark in the robbery trial.

Lark failed to appear for trial on the robbery charge and he was convicted in absentia. Thereafter, Lark repeatedly threatened the prosecutor in the robbery case and detectives investigating the Cho homicide. He was captured on January 9, 1980 after he took a mother and her two small children hostage.

Following capture, Lark was charged with offenses related to the murder of Mr. Cho, terroristic threats against the prosecutor in the robbery case, and the kidnapping of the woman and her two children. The first trial ended in mistrial.  Following retrial, he was convicted and sentenced to death.

After a byzantine series of appeals and remands in both state and federal court, Lark petitioned for habeas relief in the District Court for the Eastern District of Pennsylvania.  He claimed that the prosecutor from his second murder trial had committed Batson violations by using peremptory strikes to remove African-Americans from the jury.

At an evidentiary hearing in the District Court, the prosecutor testified that, twenty-one years after the fact, he could not recall his reason for striking the challenged venire-members.  The District Court held that, under Batson, Lark was required to do no more than present a prima facie case of racial discrimination in order to meet his burden if, as was the case, the Commonwealth was unable to offer a race-neutral explanation for the allegedly racist strikes.  The Court vacated Lark's conviction, and remanded the case for re-trial.  The Commonwealth appealed.



Following a lengthy discussion of the case's procedural posture, the Third Circuit Court of Appeals concluded that the District Court had erred:

The District Court’s acceptance of Lark’s prima facie case as dispositive proof of Carpenter’s intent substituted inferences for an actual answer to the question of whether Carpenter discriminated in the selection of jurors. We hold that the District Court, by moving to the third step, could have weighed all of the evidence against Lark’s prima facie case.

In other words, the Third Circuit held that, although the Commonwealth failed in its burden of proof in coming forward with a non-discriminatory explanation for the challenged strikes, the defense was nevertheless required to thereafter go forward to the third-step of Batson analysis and prove purposeful discrimination.  An unanswered prima facie claim is not sufficient to sustain a Batson challenge.

Chief Judge McKee concurred with the holding of the majority.