Wilson v. City of Philadelphia (177 F. Supp. 3d 885, 2016)

MEMORANDUM

PAPPERT, District Judge.

In April of 1986 the United States Supreme Court decided the case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), holding that the Fourteenth Amendment’s Equal Protection Clause prohibits prosecutors from challenging potential jurors based on their race. Id. at 89, 106 S.Ct. 1712. Prior to Batson, the Court’s opinion in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) governed the analysis of alleged racial discrimination in jury selection; Under Swain, it was much more difficult- for a criminal defendant to show that the -prosecutor used preemptory strikes for racial reasons; rather than focus on a prosecutor’s actions in the specific case at hand, the defendant had to show the “repeated striking of blacks over a number of cases.” Id. at 92, 106 S.Ct. 1712.

Batson lowered the burden of proof required to establish a prima facie case of purposeful discrimination in jury selection. See Batson, 476 U.S. at 96-98, 106 S.Ct. 1712. The Court stated that a criminal defendant can establish a prima fade case of purposeful discrimination in jury selection solely on evidence concerning the exercise of peremptory challenges in that particular case. Id. at 96, 106 S.Ct. 1712. If the defendant meets that burden, the prosecutor can then offer a race-neutral explanation for his challenges. Id. at 97, 106 S.Ct. 1712. To do so, the prosecutor needs to do more than merely state that “he challenged jurors of the defendant’s race on the assumption' — or his intuitive judgment — that they would be partial to the defendant because of their shared race.” Id. The trial court, considering the prosecutor’s explanation, then determines if the defendant has established “purposeful discrimination.” Id. at 98, 106 S.Ct. 1712.

At some point in 1986 or 1987, but certainly after the Batson decision, Jack McMahon (“McMahon”), an experienced prosecutor in the Homicide Unit of the Philadelphia District Attorney’s Office (“DAO”), gave a presentation on jury selection to less experienced prosecutors in the office. McMahon’s lecture was videotaped. The “McMahon Tape” became.public in 1997 and quickly gained a measure of infamy as an example of what not to say and how not to say it. Ostensibly intended to be educational and, at least in part, to explain how the younger prosecutors could select juries in a manner that complied with Batson, parts of the lecture came to be interpreted as a lesson in how to circumvent Batson’s requirements..

Someone who took a particular interest in the McMahon Tape was the Plaintiff in this case, Harold C. Wilson (“Wilson”). Wilson, who is black, was on death row having been prosecuted by McMahon and convicted of three counts of first degree murder in 1989. In the months and years following his conviction, Wilson filed numerous post-trial motions and appealed the denial of those motions — one of which contended that McMahon violated Bat-son — to the Pennsylvania Supreme Court, which upheld the lower court’s decisions.

Wilson then relied on the McMahon Tape in another round of post-conviction relief filings contending again, among other things, that McMahon unconstitutionally excluded blacks from his jury. After a hearing on Wilson’s Batson claim, the Post-Conviction Relief Act (“PCRA”) Court held that the prosecution violated Batson at Wilson’s trial. Wilson’s, conviction was set aside and he was granted a new trial. Wilson was eventually acquitted of all charges after his retrial and he thereafter filed this lawsuit against the DAO, the City of Philadelphia (“the City”) and a number of former Philadelphia Police Department officers.

Wilson’s claims against the DAO allege: (1) a violation of his equal protection rights under the Fourteenth Amendment; and (2) a 42 U.S.C. Section 1988 Monell claim contending that the DAO had a policy or custom of racial discrimination in jury selection which caused Wilson’s constitutional injury. (Second Am. Compl. ¶¶ 56-67, ECF No. 89.) Wilson also asserts a Mo-nell claim against the City. He alleges that the City’s policies, customs or failure-to-train its officers on their obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) violated Wilson’s Fourteenth Amendment due process rights. (Id.) Wilson alleges the following against former officers of the Philadelphia Police Department: (1) Brady violations by former Homicide Detective Walter Hoffner (“Hoffner”) and Laboratory Technician Lewis Brenner (“Brenner”); (2) malicious prosecution claims under Section 1983 and Pennsylvania state law against Hoffner; and (3) intentional infliction of emotional distress claims against Hoffner and Brenner. (Id. ¶¶ 49, 51, 63-65.)

Before the Court are the Defendants’ motions for summary judgment. For the reasons that follow, the City, Hoffner and Brenner’s motion is granted in its entirety and those Defendants ax-e dismissed from the case. The DAO’s motion is denied as to Wilson’s claim that the DAO had a custom of racial discrimination in jury selection because there are' genuine issues of material fact which preclude the Court from determining as a matter of law that no such custom existed.

1. A Triple Homicide, the Investigation and Criminal Charges Against Wilson

At 10:13 a.m. on April 10, 1988, officers from the Philadelphia Police Department responded to a disturbance call at 1516 South Stillman Street (“the Stillman House”). (Joint Appendix (“JA”) 5930.) Upon arrival, the officers discovered the bodies of Dorothy Sewell (“Sewell”), Tyrone Mason and Cynthia Goines (“Goines”). (Id.) Each had sustained multiple stab, chop and slash wounds to the head, neck, trunk and upper extremities. (Id.) At 10:30 a.m., Sergeant Thomas Burke assigned Hoffner as the lead investigator. (JA 5931.) Dr. Jonathan Briskin pronounced Sewell, Tyrone Mason and Goines dead on the scene at approximately 11:40 a.m. (JA 5937.)

A. April 10, 1988 Interviews and Evidence

At 11:20 a.m. on April 10, Hoffner interviewed Rachel Mason (“Mason”), the woman who first discovered the bodies. (JA 5948-52.) Mason told Hoffner that she was Sewell’s niece and was inside the Still-man House until 4:00 a.m. on April 10. (Id.) Mason admitted that she was smoking cocaine during the time she was at the Stillman House, and that five or six people came by throughout the day to purchase cocaine from Sewell. (Id.) She stated that Sewell kept “a lot of money in her pocketbook,” sometimes amounting to thousands of dollars. (Id.)

Mason told Hoffner that when she left the Stillman House at 4:00 a.m., the only people who remained were Goines, Sewell, Tyrone Mason, Harry Mandeville (“Mandeville”) and Wilson. (Id.) Mande-ville was Mason’s 98 year-old grandfather and lived at the Stillman House. (Id.) Mason returned to the Stillman House around 10:00 a.m. on April 10 to cook breakfast for Mandeville. (Id.) It was at that point she discovered the bodies. (Id.)

Mason told Hoffner that Wilson was staying at the Stillman House for the weekend and that throughout that time she observed Wilson in Tyrone Mason’s bedroom smoking cocaine. (Id.) She also stated that Wilson was “wearing a tan waist length windbreaker type jacket.” (Id.) Mason left around 4:00 a.m. because she was tired, could not sleep and because Tyrone Mason was “crazy” and always talked “about sticking knives in people.” (Id.) According to Mason,- Tyrone Mason kept “all kinds of knives and stuff’ in his room. (Id.)

At 11:45 a.m. on April 10, Hoffner interviewed Vernon Gillespie (“Gillespie”). (JA 5955-57.) Gillespie said that he smoked , cocaine at the Stillman House until approximately 2:00 a.m. on April 10. (Id.) At some point before 2:00 a.m., Gillespie and Tyrone Mason left to buy more cocaine. (Id.) Rachel Mason asked Gillespie to buy the cocaine because Goines, Wilson and Mason “didn’t have [any] money.” (Id.) When Gillespie returned, he took two hits of the new cocaine and left. (Id.) At the time he left, Gillespie stated that everyone was in Tyrone Mason’s room smoking. (Id.)

Detectives also interviewed Valyncia Craig (“Craig”) on April 10. (JA 5961-67.) Craig told detectives that Mason came to her house around 4:00 a.m. to stay the night. (Id.) She also stated that she saw Wilson standing in the doorway of the Stillman House at 3:00 a.m. wearing a green sweater with a yellow stripe. (Id.)

Detectives recovered, among other things, the following pieces of physical evidence from the Stillman House on April 10: (1) a hatchet, approximately 1ft. 4 in. long, with a hair or fiber on the blade; (2) a pair of scissors; (3) a knife with a bent blade and red stains; (4) a red stain sample from the top step leading into the Stillman House; (5) a red stain sample from the door of a yellow station'wagon parked in front of the Stillman House; and (6) a red stain sample from the sink in one of the bathrooms. (JA 6050.)

B. April 11, 1988 Interviews, Evidence and Charges

At approximately 4:50 a.m. on April 11, Wilson came to the police station for questioning. (JA 7152-55.) Detective Roy J. Gibson (“Gibson”) interviewed Wilson at 5:15 a.m. (Id.) During the interview, Gibson observed injuries to Wilson’s hands. (JA 2716.) Specifically, Gibson noticed a scrape on Wilson’s palm, an injury to the webbing of Wilson’s hand and a scrape on his knuckle. (Id:) Wilson told Gibson that he was at the Stillman House from 7:30 p.m. on April 9 to 3:30 a.m. on April 10. (JA 7152-55.) Wilson told Gibson that when he left the Stillman House he was wearing: (1) tan khaki pants; (2) a black corduroy hat; (3) white Puma sneakers; (4) a black pullover shirt; and (5) a brown reversible sweater jacket, sweater on one side jacket on the other, (Id.) Wilson stated that the clothes he wore the morning of April 10 were at his mother’s (“Mrs. Wilson”) house. (Id.) He denied any involvement in the murders. (Id.)

Wilson told Gibson that after leaving the Stillman House at 3:30 a.m., he went straight to' his mother’s house at 2246 Dickinson Street. (Id.) Wilson said that while at his mother’s, he helped his brother move boxes and a kitchen table from the house into a U-Haul truck. (Id.) Wilson told Gibson that he then went to Robin Dyson’s (“Dyson”) house, where he remained until Gillespie came over and told everyone about the murders. (Id.) At that point, Wilson stated that he went back to his mother’s where she told him that the police were looking to speak with him. (Id.)

At some point after Wilson’s interview, Detective Michael Troutner (“Troutner”) prepared an affidavit of probable cause to obtain a search warrant for Mrs. Wilson’s house. (JA 6068-69.) A judge approved the warrant and the police conducted a search at 11:10 a.m. on April 11. (Id.) The warrant granted detectives the authority to search Mrs. Wilson’s home for: (1) any and all bloody, clothing; (2) any. cutting instruments; (3) a.green sweater with a yellow stripe; (4) a black pullover shirt; (5) white Puma sneakers; (6) a black hat; (7) khaki pants; (8) a brown sweater; and (9) a tan windbreaker. (Id.) The detectives recovered a tan waist-length jacket with what appeared to be blood stains and one pair of tan pants. (Id.) The jacket was- found in the basement of Mrs. Wilson’s home. (Id.) The inventory sheet for this search warrant was typed, indicating it was not filled out at the scene. (Id.)

While detectives searched Mrs. Wilson’s house, Hoffner interviewed Gillespie for a second time at 11:35 a.m. on April 11; (JA 5958-60.) Gillespie told Hoffner that he saw Wilson at Dyson’s house the night of April 10. (Id.) When Gillespie arrived and told everyone about the murders, Wilson acted like he did not know what was going on. (Id.) Gillespie also told Hoffner that Wilson had changed clothes from the night before. (Id.) After leaving Dyson’s, Gillespie received a phone call from Tanya Tin-dal (“Tindal”), the mother of Wilson’s two children, around 3:30 a.m. on April 11. (Id.) Tindal told Gillespie that Wilson was sitting in her home getting high and that she wanted to get herself and the children out of the house. (Id.) Gillespie then called Wilson’s mother, who told Gillespie that she went over to Tindal’s to pick up Tindal and the children. (Id.) Mrs. Wilson told Gillespie that when she arrived, Wilson was sitting in the kitchen getting high and stated that he did not want to talk to the police. (Id.) Gillespie told Hoffner that after speaking with Mrs. Wilson, he went to Tindal’s house and after approximately forty minutes, persuaded Wilson to go speak with police. (Id.)

Detective Richard Bova (“Bova”) interviewed Mrs. Wilson at 12:10 p.m. on April 11. (JA 5979-84.) Mrs. Wilson stated that she was present for the search that morning, but did not recognize the bloody jacket because it had already been “balled up in a bag.” (Id.) Mrs. Wilson told detectives that she did not see Wilson helping his brother move the morning of April 10 as Wilson stated in his interview. (Id.) When Mrs. Wilson asked her son if he was involved in the Stillman incident, Wilson told her “not to worry.” (Id.)

Hoffner interviewed Tindal at 12:30 p.m. on April 11. (JA 5969-73.) Tindal stated that when she walked into her house around 1:00 a.m. that morning she observed Wilson sitting naked at her table smoking cocaine. (Id.) She noticed a scratch on Wilson’s chest and asked Wilson “if he got it from his woman.” (Id.) He responded by saying “I ain’t been around no women.” (Id.) When Tindal went upstairs to put the children to bed, she noticed that Wilson had brought with him a tan shoulder bag and a dark brown suit bag. (Id.) At that point, she noticed what appeared to be blood on Wilson’s white sneakers. (Id.) Tindal also saw blood oh Wilson’s brown pants in her dirty clothes bin. (Id.) Tindal told Mrs. Wilson about the sneakers and the pants when Mrs. Wilson arrived. (Id.) Tindal stated that Mrs. Wilson then took the pants, put them in a yellow bag and left with them. (Id.) The police never recovered the purportedly blood-stained pants or sneakers.

Tindal told Hoffner that Wilson often stayed in his mother’s basement. (Id.) Additionally, after speaking with Wilson’s sister earlier that morning, Tindal discovered that Wilson had visited his mother’s house at 8:00 a.m. the morning of April 10. (Id.) Tindal also told Hoffner that Wilson “beat her up” a number of times and sometimes was in such a rage that he would foam.at the mouth. (Id.)

After the interviews of Gillespie, Tindal and Mrs. Wilson, detectives interviewed Dyson and Aurelia Moore (“Moore”), Dyson’s live-in girlfriend. (JA 5976-78, 5987-92.) Dyson told detectives that Wilson came to his house around 8:80 a.m. the morning of April 10. (JA 5987-92.) Dyson observed a scrape on Wilson’s hand that “looked like he had been in a fight.” (Id.) When Wilson asked Dyson for a Band-Aid, Dyson told him he did not have one. (Id.) At some point that morning, Wilson left Dyson’s and returned with Band-Aids, orange juice and a bottle of alcohol. (Id.) Dyson told detectives that when Wilson arrived that morning, he had “a lot of money.” (Id.) Specifically, Dyson observed that Wilson “had an envelope with a lot of bills in it” and that “he. also had some folding money on the side.” (Id.) Wilson gave Dyson a total of $70 that day to buy cocaine for everyone to smoke, but did not charge anyone. (Id.) Moore also told detectives that Wilson had a “fresh” scratch on his knuckle and that he asked for a Band-Ad. (JA 5976-78.) Moore observed that Wilson had a leather suitcase bag and another cloth bag that was light brown or tan.,(Zd) Moore told detectives that when he arrived, Wilson was wearing white sneakers and a pair of brown pants. (Id.)

After these interviews, detectives prepared two more affidavits of probable cause to obtain two additional search warrants. (JA 6066-67, 6070-71.) A judge approved both warrants. (Id.) The first warrant granted police the authority to take pictures of Wilson’s injuries and samples of his blood, hair and fingernail scrapings. (JA 6066-67.) Police executed this search warrant at 2:40 p.m. on April 11, recovering a sample of Wilson’s hair, four vials of his blood and one blue sock worn by Wilson. (Id.)

The second search warrant granted police the authority to search Tindal’s home for any bloody clothing including a black corduroy hat, a black shirt, brown pants, a tan shoulder bag, -white sneakers with blood on them and any drugs or drug paraphernalia. (JA 6070-71.) Police executed this warrant at 5:00 p.m. on April 11, recovering a blue corduroy hat, a travel bag with various papers in it and a brown garment bag with two shirts inside. (Id.)

At some point on April 11, detective Hoffner filled out Wilson’s arrest report. (JA 6089-90.) The listed “time of arrest” on the report is 4:50 a.m. on April 11,1988. (Id.) Wilson’s arrest report also lists the time he was “slated” as 10:55 p.m. on April 11, 1988. (Id.) Hoffner testified that the time Wilson was “slated” represented the time he was officially put in the arrest book after all the arrest paperwork had been completed. (JA 2139.) Hoffner recommended that Wilson be charged, and on April 11, 1988, Assistant District Attorney Leonard Deutchman filed a criminal complaint formally charging Wilson with the murders of Tyrone Mason, Goines and Se-well. (JA 6086-88.)

C. Subsequent Interviews, Evidence and Criminalistics

After Wilson was charged on April 11, detectives continued their investigation, looking for any other evidence near the Stillman House. Specifically, detectives focused on the route Wilson would have taken as he walked from the Stillman House to his mother’s house. (JA 6066-70.) On April 13 at approximately 12:00 p.m., detectives recovered along that route a carpenter’s hatchet from a sewer at the corner of Taylor and Dickinson streets. (JA 6056-57.) Detectives noticed a red stain and also what appeared to be hair on the blade of the hatchet. (Id.)

Detectives interviewed Wilson’s brother, Jonathan Wilson, on May 14. (JA 6018-19.) Jonathan Wilson told detectives that he saw Wilson the morning of April 10 at their mother’s house, but that Wilson never helped him move anything into the U-Haul truck. (Id.) Detectives also interviewed Craig a second time on May 14. (JA 5968.) Craig told detectives that Se-well always kept an envelope full of money in her pocketbook. (Id.)

The police sent all of the physical evidence to the criminalistics laboratory for testing. Brenner tested the evidence. (JA 6058-65.) From the blood samples provided, Brenner was able to ascertain ABO Blood Types for Wilson and all three victims. (Id.) Brenner also conducted two enzyme tests: a phosphoglucomutase (“PGM”) test and a peptide azide (“Pep-A”) test. (Id.) He created a report comparing the results of the evidence tested to the known blood and enzyme types of Wilson and the victims. (Id.) Brenner summarized the results in the chart below:

(Id.) According to his tests, Brenner matched the blood and enzyme types found on the right sleeve of the jacket with the blood and enzyme types of both Tyrone Mason and Sewell. (Id.) Although he was not able to determine the PGM or Pep-A results for the remaining evidence, Brenner was able to determine: (1) the ABO Blood Type found on the upper-middle rear of the jacket matched the ABO Blood Types of both Wilson and Goines; (2) the ABO Blood Types on the hatchet handle, identified as both A and B, could have matched any of the victims or Wilson; and (3) the ABO Blood Type on the knife matched the ABO Blood Types of Tyrone Mason and Sewell. (Id.)

Brenner took notes while conducting the various tests. (JA 6904-24.) His notes reveal that he conducted fabric impression tests to see if any observable fabric pattern in the blood on the hatchet matched the clothes of either Wilson or the victims. (Id.) Brenner’s notes reflect that the observable impressions on the hatchet did not match any of the victims’ or Wilson’s clothes. (Id.) The results of the fabric impression test were not included in Brenner’s final criminalistics report, and they were not disclosed to prosecutors or Wilson’s counsel. (JA 6058-65.)

Brenner’s notes also reveal that he conducted additional tests on the jacket. (JA 6904-24.) Specifically, Brenner conducted an initial PGM test on the blood found on the right sleeve which resulted in a finding of: “Type 1 or Type 2 (mixture? ?).” (Id.) Below this finding, Brenner wrote down: “(repeat).” (Id.) Brenner conducted another PGM test on the right sleeve which indicated that the blood was: ABO Type A; PGM Type 2; and Pep-A Type 1. (Id.) He was thus able to match Tyrone Mason and Sewell’s blood and enzyme types with those on the right sleeve of the jacket only after his second test. The result from the first test was neither included in Brenner’s final criminalistics report nor disclosed to prosecutors or Wilson’s counsel. (JA 6058-65.)

Throughout the relevant time period, the Philadelphia Police Department’s forensic laboratory maintained a policy of not requiring its laboratory technicians to provide their notes to prosecutors or criminal defendants. (JA 2511-12.) Rather, technicians would take notes as they conducted tests and then compile everything into a final report. (JA 2511.) These final reports would typically include the type of analysis conducted, the item tested, a description of the item, where the item came from, the submitting officer, results of the testing and any conclusions that could be drawn from the results, (Id,)

II. Jury Selection and the Policies, Practices and Training of the DAO

A. Office Structure and the McMahon Tape

Ronald Castille (“Castille”) was the District Attorney from 1986 to 1991. (JA 80.) William Chadwick (“Chadwick”) was Cas-tille’s First Assistant. (Id.) As admitted by the DAO in its answers to Wilson’s interrogatories, both Castille and Chadwick were “policymakers” of the DAO during those years. (JA 5304.)

Under the DAO’s “organization chart,” all Assistant District Attorneys (“ADAs”) reported to Unit Chiefs. (JA 80.) For example, ADAs working in Homicide would report to the Homicide Unit Chief. (Id.) Unit Chiefs then reported to a Deputy who oversaw a division of units. (Id.) In 1988 and 1989, the “Trials Division” was made up of the following units: Homicide, Major Trials, Felony Waiver, Municipal Court, Rape and Child Abuse. (Id.) Deputies reported to Chadwick, who in turn reported directly to Castille. (Id.)

The DAO’s policy with regard to jury selection derived from its general goal of obtaining convictions that were “sustainable and [could] survive an appeal.” (JA 88.) Given that baseline, the “policies and practices” of not “excluding] minorities from juries solely because they’re minorities had been set in concrete long before Castille became the D.A,” (JA 90.) According to Chadwick, the policy “had become so part of the fabric of the office that' it really was a practice.” (JA 88.) It was so much a part of “the office culture” that the DAO did not “spen[d] a whole lot of time on Batson implementation because [the DAO] viewed it as part of the existing culture that [it] had inherited from , the Rendell Administration.” (JA 88, 90.)

The DAO did not maintain a “formal” training program with regard to Batson or jury selection generally. (JA 124.) Rather, “[t]he' Office’s working assumption is that lawyers' know the law.- Batson is the law.” (JA 133.) Despite the lack of a “formal” Batson training program in 1988-and 1989, ADAs received jury selection training in three primary ways: (1) observing and learning from other ADAs; (2) attending lectures conducted by the Director of Training, Bruce Sagel (“Sagel”); and (3) mentorship and supervision provided by Unit Chiefs. (JA 84, 87, 123-25, 694.) Chadwick testified that “[m]ost of the expertise that the [ADAs] acquired was from each other.” (JA 83.) For example, “one of the ways that you would learn how to [select a jury],” would be to “go watch [ADAs] try cases.” (JA 87.)

In 1986 or 1987, the Deputy of the Juvenile Division, Albert Toczydlowski, asked McMahon to give a presentation on jury selection to junior ADAs. (JA 733, 1469-1641.) Approximately ten ADAs attended the lecture. (JA 735.) McMahon’s presentation was videotaped (“the McMahon Tape”) and kept in a training room for ADAs. (JA 736, 870.) In the lecture, McMahon stated that “the only way you’re going to do your best is to get jurors that are as unfair and more likely to convict than anybody else in that room.” (JA 1514.)

McMahon also discussed “rules” that he believed ADAs should follow when selecting jurors. (JA 1471.) For example, McMahon advocated striking young black women:

[I]n my experience, black women, young black women are very bad. There’s an antagonism. I guess maybe because they’re downtrodden on two respects, they got two minorities, they’re women and they’re and [sic] blacks, so they’re downtrodden in two areas. And they somehow want to take it out on somebody, and you don’t want it to be you. And so younger black women are difficult, I’ve found.

(JA 1525.) McMahon also advised against selecting black jurors from low-income neighborhoods in Philadelphia. Specifically, McMahon stated:

[L]et’s face it, again, there’s the blacks from the low-income areas are less likely to convict. It’s just — I understand it. It’s [sic] understandable position. There is a resentment for law enforcement,, there’s a resentment for authority and, as a result; you don’t want those people on your jury. And it may appear as if you’re being racist or whatnot, but again, you are just being realistic. You’re just trying to win the case.

(JA 1515-16.) At one point, McMahon told the ADAs: “[W]hen they call the names out, okay, Juror No. 1, No. 20, Reynard Boiken. I know I’m not taking Reynard; I can tell that already;” (JA 1493.)

McMahon did not, however, advocate for an all-white jury. Referencing his own experience, McMahon stated: “I’ve seen DAs strike them because they’re black, and that’s kind of like a rule, ’Well they’re black, I’ve got to get rid of them.’” (JA 1524.) Rather, McMahon believed that “a jury of like eight whites and four blacks is a great jury, or nine and three.” (JA 1527.) In order to get that configuration, McMahon advised ÁDAs to “[c]ount the blacks and the whites” when the jurors came into the room. (JA 1534-35.) He also advised that “in selecting blacks, again you' don’t want the real educated ones, again.” (JA 1523.) To this end, McMahon provided: “[i]f you’re sitting down and you’re going to take blacks, you want older blacks. You want older black men and women, particularly men. Older black men are very good.” (Id.) McMahon also advocated selecting black jurors from the south because “they’re law and order.” (JA 1524-25.)

Toward the end of the presentation, McMahon instructed the ADAs on Batson. Specifically, McMahon stated that Batson was “very limited to the facts of that particular ease, because you had a racial case, the prosecutor struck all blacks, the — every black on the panel.” (JA 1537.) McMahon advised that “to avoid any problems” with Batson, ADAs should “question [black jurors] at length.” (JA 1537-38.)

B. Other Jury Selection Training

i. The Director of Training

The DAO also maintained a training program to “orient the new ADAs to the office.” (JA 84.) Sagel testified that Chadwick asked him to be the Director of Training in 1986 after Sagel had expressed interest in the position. (JA 697.) Sagel gave at least one lecture on jury selection in either 1986 or 1987. (JA 699-701.) When asked during his deposition whether he instructed ADAs to take “acceptable black jurors” in the first round of jury selection, Sagel stated: (JA 710.) Sagel also stated that “you don’t ever want to think like a lot of [DAs] or a lot of defense lawyers that you’re just not going to put a black on.” (Id.)

I couldn’t have been a racist when I’m telling them that many, many — and even more so today than back 30 years ago that blacks make excellent Commonwealth jurors, and I believe somewhat in that. It’s because many times a black juror will bring along a reluctant white juror depending on the circumstances. So depending on the case, depending on the age, depending on who your defendant is, depending on what the facts of the case, blacks make excellent jurors in the appropriate case.

When asked whether he told ADAs that older black men make excellent jurors, Sagel stated:

I’m sure that I mentioned age of the people and older black men who had property or were maybe raised in the South depending on where they came from and other things, that an older black man was usually a pretty good Commonwealth juror as opposed to having a 21 year old who probably hates the police and might not make a good juror.

(JA 711.) Sagel was also asked whether he believed that some black jurors are helpful to have on the jury. (JA 712.) Sagel responded:

I didn’t say it that way and I don’t know if I used the word helpful, but there’s no doubt that black jurors are where a lot of crime happens in Philadelphia. Some happens in white areas, black areas. They know what’s going on more so today, and they don’t like young punks or whatever robbing or burglarizing or whatever.

(Id.) Finally, when asked whether he instructed ADAs to count males, females, blacks and whites in the jury pool, Sagel stated: “I don’t know exactly what I said on that, but in going out to see the jury, obviously there’s a big difference in race, there’s a big difference in gender, and— you know, if you’re going to take a look at them, try to remember what you got.” (JA 707.)

ii. Unit Chiefs

ADAs also received “on-the-job” training from Unit Chiefs who were responsible for overseeing ADAs in their unit and being available for questions regarding trial strategy. (JA 83,123-24.) Each unit held weekly or monthly meetings as needed where they would discuss, among other things, jury selection. (JA 125.) Barbara Christie (“Christie”) was 'the Unit Chief for Homicide in 1988 and 1989. (JA 83.) Christie was appointed by Castille with input from Chadwick and other Deputies. (JA 81.)

Pennsylvania state and federal courts have analyzed Christie’s jury selection practices. For example, in Commonwealth v. Brown, 490 Pa. 560, 417 A.2d 181 (1980), the Pennsylvania Supreme Court examined Christie’s use of peremptory challenges under the Swain standard. The majority first articulated the burden for a plaintiff seeking to establish an equal protection violation under Swain:

The presumption [that the prosecutor is using the State’s challenge to obtain a fair and impartial jury] is overcome when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of [blacks] who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no [blacks] ever serve on petit juries.

Brown, 417 A.2d at 186. Despite Christie’s undisputed use of all sixteen peremptory challenges against potential black jurors, the court ultimately found no equal protection violation because the plaintiff had not demonstrated that Christie, in case- after case, struck black jurors because of their race. Id. at 186-87.

In November 1981, Christie prosecuted Edward Sistrunk (“Sistrunk”) for murder. During jury selection, Christie exercised thirteen peremptory strikes against every potential black juror. (JA 8840-51.) Throughout jury selection Christie kept a running tally of how many blacks and whites were left on the panel. (Id.) Sis-trunk, who was black, was convicted by an all-white jury. (Id.)

In the 1991 case of Diggs v. Vaughn, No. 90-2083, 1991 WL 46319 (E.D.Pa. Mar. 27, 1991), our Court issued a writ of habeas corpus to a defendant Christie prosecuted. (JA 8824-29.) The court issued the writ after an evidentiary hearing was held before a magistrate judge on the defendant’s Batson claim. (Id.) The magistrate found that “examination of the notes of [Christie] taken during jury selection ... reveals that she kept a running tabulation of the number of blacks left on the jury after each challenge was exercised.” (JA 8835.) He stated “[t]he prominence of this racial tabulation throughout the notes provides a telling indication of the predisposed prejudice of [Christie] towards blacks on the jury.” (Id.) In adopting the magistrate judge’s recommendation, the district court noted that “the record demonstrates conclusively that, at each trial, the prosecutor kept careful records of the race of each prospective juror, and a running tally of how many persons of each race remained on the venire for possible selection.” (JA 8826.) The court therefore found that “race seems to have featured prominently in the thought process of the trial prosecutor.” (Id.)

III. Wilson’s Trial and Post Conviction Proceedings

A. Wilson’s Trial

During voir dire, McMahon used eleven peremptory challenges on black jurors and six peremptory challenges on jurors of other races, leaving three peremptories unused. (JA 4458-63.) McMahon also used one peremptory challenge on a black juror during the selection of alternate jurors. (Id.) Ultimately, Wilson’s jury consisted of four black and eight white jurors — the ratio McMahon advocated in his training video. (Id.)

During its case in chief the prosecution called, among others, Mason, Gillespie, Dyson, Tindal and Brenner as witnesses. (JA 3451-4115.) Mason testified that at some point early in the morning of April 10 she left the Stillman House to get matches. (JA 3594.) On her way out, Mason saw a jacket on the bannister and asked whose it was. (Id.) Wilson told Mason that the jacket was his and proceeded to grab his keys out of the pocket. (JA 3594-95.) Mason, identified the jacket in court as the, one she.wore that night when she left to, get matches, but noted that it did not have blood .on it when she wore it. (JA 3597r99.) Mason also testified that as she left around 4:00 a.m., she locked the door on her way out. (JA 3606.) In his closing, McMahon argued that because the door was locked and there were no signs of forced entry, the murderer must have already been in the house. (JA 4117-4252.) Mason, also identified the hatchet found in the sewer as the hatchet Tyrone Mason kept in his room. (JA 3620.) She testified that she saw the hatchet in Tyrone Mason’s drawer when she was looking for matches, and was able to identify the hatchet as Tyrone Mason’s because of a particular engraving on the handle. (JA 3620-21.)

On- cross-examination, Wilson’s counsel questioned Mason about the locking mechanism on the door at the Stillman House. (JA 3669.) Wilson’s counsel elicited testimony that the door sometimes appeared locked, but was not actually locked. (JA 3669-70.) Additionally, Wilson’s counsel established that Mason had an open drug case at the time. (JA 3673.) Mason denied, however, that any deals were offered to her in exchange for her testimony against Wilson. (JA 3682.)

Gillespie identified the jacket as the one he saw lying on the bannister at the Still-man House. (JA 3744.) On cross-examination, Gillespie testified that the jacket belonged to Tyrone Haynes (“Haynes”). (JA 3757.) Gillespie stated that he last saw Haynes wearing the jacket two weeks pri- or to the murders. (JA 3761.) Additionally, Gillespie stated that the last time he saw Haynes was the Thursday before the murders. (JA 3762.)

Dyson testified that he was not expecting Wilson when he came over on the morning of April 10. (JA 3767-78.) Dyson reiterated his testimony about Wilson’s injury, request for a Band-Aid and that he had an envelope full of money. (JA 3775-81.) Tindal also testified consistent with the statement she gave to detectives on April 11, where she spoke of Wilson’s bloody pants and how his mother put them in a bag and took them away. (JA 3918-21.) On cross-examination, Tindal stated that she felt threatened at the time she gave her statement because detectives questioned her for six hours and threatened to take her children away. (JA 3926-27.) She stated that Hoffner was not the detective who threatened her, but rather it was an officer standing guard outside her interview room. (Id.) At the end of her testimony, Tindal affirmed that she told detectives the truth in her statement. (JA 3945-47.)

Brenner’s testimony consisted largely of his explanation of how he went about testing the evidence included in his criminalis-tics lab report. He testified about the percentages of the population that would have certain ABO Blood Types in. combination with the specific PGM and Pep-A Types. (JA 4008-13). Specifically, Brenner testified that the blood stain on the jacket sleeve matched the ABO, PGM and Pep-A types of both Tyrone Mason and Sewell. (JA 4019-26.) This specific combination of blood and enzyme types, according to Brenner, occurred in roughly 1.5 percent of the population. (JA 4011.) Because Wilson’s counsel did not have Brenner’s notes, Brenner was not cross-examined on the part of those notes which reflected an .initial test showing that the PGM result was “Type 1 or Type 2 (mixture? ?).” (JA 6904-24.) Brenner was, however, cross-examined on the fact that DNA testing existed at the time and that the lab had sent evidence out for DNA testing before, but did not do so in Wilson’s case. (JA 4033-35.)

On October 4, 1989, the jury found Wilson guilty of three counts of first-degree murder and one count of possessing an instrument of crime. (JA 1091-1101.) Wilson did not testify during the trial. During the penalty phase hearing, however, Wilson acknowledged .wearing the bloody jacket at the crime scene. (JA 1141-42.) Wilson was thereafter sentenced to death. (JA 1132-74.)

B. Post-Conviction Proceedings

Wilson filed post-trial motions asserting, among other things, that his constitutional rights under Batson were violated. (JA 5785-5926.) The trial court heard Wilson’s motions on October 3,1991, and ultimately denied them in December 1993. (JA 5786.) Wilson appealed his case directly to the Pennsylvania Supreme Court, which affirmed the trial court’s decision in February 1996. (Id.)

District Attorney Lynne Abraham (“Abraham”) learned of the McMahon Tape and publicly disclosed it in March 1997. (JA 6-9.) Abraham also issued a memorandum to all ADAs following the tape’s release:

The purpose of this memo is to re-state what has been and will continue to be the District Attorney’s Office policy with regard to jury selection and the use of peremptory challenges. Peremptory challenges shall not be used to exclude members of any race, religion, ethnic group or gender from service on a jury on account of race, religion, ethnicity or gender.

It is our primary goal to seek justice by insuring [sic] that every defendant receives a fair trial. In order to achieve that goal you are again reminded of the necessity that you follow the dictates of Batson v. Kentucky. A copy of the opinion of the Court is attached to this memo.

(JA 169.) Abraham directed an investigation into who in the office had seen the video. (JA 8.) ADAs were required to “self-report” if they had seen the lecture, and if so, how it affected their jury selection practices. (Id.) Abraham testified that approximately a dozen people said they had seen it and all of them denied having been influenced by it. (JA 8, 609.)

After learning of the McMahon Tape, Wilson filed for post-conviction relief in August 1997. (JA 5785-5926.) Wilson alleged, among other things, that his rights under Batson were violated during jury selection at his- criminal trial. (Id.) Wilson filed a supplement to his petition in October 1997, arguing that “[t]he Commonwealth, through the acts of prosecutor Jack McMahon, exercised its peremptory-strikes in a racially discriminatory manner to exclude African Americans from participation on the jury.” (JA 8133.) Wilson contended that this violation entitled him to a new trial. (JA 8134.)

The Pennsylvania Supreme Court vacated its prior decision affirming the trial court’s dismissal of Wilson’s Batson claim and remanded for an evidentiary hearing in light of the newly discovered McMahon Tape. (JA 491.) The Philadelphia County Court of Common Pleas (“PCRA Court”) held the evidentiary hearing on Wilson’s Batson claim. (JA 4254-99.) McMahon testified over the course of two days at the hearing about his reasons for peremptorily striking certain jurors in Wilson’s case, and also his instruction in the McMahon Tape. (Id.) The post-conviction proceedings included discovery, briefing and oral argument by both Wilson and the Commonwealth. (JA 488-595, 1177-1217, 4254-4457.) On January 17, 2003, the PCRA Court rukled that:

Mr. Wilson is entitled to a new trial because of the Commonwealth’s violation of the [sic] Batson. Court finds that there was definitely an attempt on the part of the Commonwealth to preempt jurors because of their African American race, that the neutral reasons given were not satisfactory. It was obvious in light of cross-examination that white jurors were accepted on the same basis on which black jurors had been peremptorily challenged and therefore, I find that the reasons given were pretextural [sic] and a new tidal must be granted,

(JA 1208-09.) The PCRA Court stated its decision from the bench and did not write an opinion. (Id.) The Commonwealth chose not to appeal the PCRA Court’s decision and Wilson was granted a new trial.

Wilson’s re-trial for the murders of Goines, Tyrone Mason and Sewell took place in November 2005. (JA 4465-68.) Kevin Knox (“Knox”), a forensic scientist in the Philadelphia Police Department, performed DNA tests on, among other things, the cotton swabs containing stains from the hatchet and blood swatches taken from the right sleeve of the jacket. (JA 1343-56.) Many of Knox’s tests yielded no DNA results. (JA 1344, 5190-92, 5195.) He explained' that the lack of results could have resulted from: (1) an insufficient quantity of DNA on the samples; (2) degradation of the - sample in the 17 years since it had last been tested; or (3) the exhaustion of DNA in the sample stemming from the previous testing done in the 1980s. (JA 1345.) While Knox’s report noted that Tyrone Mason was excluded as a source of DNA from the jacket sleeve, he also admitted that he could not exclude the possibility that the DNA did, in fact, come from Tyrone Mason. (JA 1349-50.) Specifically, Knox noted that the age and degradation of the evidence could have caused the result which led him to conclude Tyrone Mason was not the source. (JA 1355-56.) The Court also excluded Wilson’s prior penalty-phase testimony in which he acknowledged wearing the bloody jacket at the crime scene. (JA 1233, 1339.) After three days of deliberations, the jury was “still entrenched in [its] position[]” and had reached a “standstill.” (JA 1457.) The trial court instructed the jury to continue deliberating and on November 15, 2005, the jury returned a verdict of not guilty on all charges. (JA 1457-58.)

IV. Procedural History

Wilson filed his first complaint pro se on March 9, 2005. (ECF No. 14.) After Defendants filed motions to dismiss on May 9, 2005 (ECF Nos. 21-22), Wilson asked to stay the proceeding until he acquired counsel. (ECF No. 23.) On June 2, 2006 the Court dismissed Wilson’s case without prejudice for failure to prosecute. (ECF No. 31.) On June 1, 2009, Wilson’s current counsel entered its appearance. (ECF Nos. 49-51.)

Wilson filed an amended complaint on July 15, 2009. (ECF No. 57.) The DAO Defendants filed a motion to dismiss (ECF No. 58) which the Court granted in part and denied in part. (ECF No. 77.) Specifically, the Court denied the DAO’s motion to the extent McMahon and Cas-tille asserted defenses of absolute and qualified immunity. (Id,) McMahon and Castille appealed the Court’s ruling. The Third Circuit Court of Appeals reversed, holding that Wilson’s allegations against McMahon and Castille were not pled with the specificity required by Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Third Circuit instructed, however, that Wilson be allowed to amend his complaint to comport with the pleading requirements. See Wilson v. City of Philadelphia, 415 Fed.Appx. 434, 437 (3d Cir.2011).

Wilson filed his second amended complaint on May 20, 2011. (ECF No. 89.) The DAO moved to dismiss the complaint on July 28, 2011 (ECF No. 96), while the City answered the pleading on September 20, 2011, (ECF No. 100.) On February 22, 2012, the Court granted the DAO’s motion to the extent it alleged state law claims against current District Attorney Seth Williams. (ECF No. 105.) On January 28, 2013, the DAO filed a motion for judgment on the pleadings (ECF No. 121) which the Court denied on May 9, 2013. (ECF No. 155.)

Wilson filed his motion for summary judgment against the DAO on August 7, 2015, seeking to apply offensive collateral estoppel to bar relitigation of his equal protection claim. (ECF No. 212.) The DAO and the City filed their respective motions for summary judgment that same day. (ECF Nos. 211, 213.) Wilson filed his responses to the City and DAO’s motions on October 6 and October 8 respectively. (ECF Nos. 218, 224.) The DAO responded to Wilson’s motion on October 7, 2015. (ECF No. 222.) All parties then filed their respective reply briefs. (ECF Nos. 230-31, 234.) ,

The case was reassigned to this Court on January 20, 2016 after Judge Restre-po’s appointment to the Third Circuit. (ECF No. 236.) The Court held oral argument on all motions for summary judgment on March 4, 2016 (ECF No. 241) and has thoroughly reviewed the entire record.

V. Legal Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ, P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute is genuine if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is granted where there is insufficient record evidence for a reasonable factfinder to find for the plaintiff. Id. at 252, 106 S.Ct. 2505. “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id.

When ruling on a motion for summary judgment, the court may only rely on admissible evidence. See, e.g., Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 95 (3d Cir.1999). A court must view the facts and draw all reasonable inferences in favor of the nonmoving party. See In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.2004). However, “an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment.” Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir.1990). The party asserting a fact “must support the assertion by.. .citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A).

VI. Monell Claim Against the DAO

Wilson alleges a Section 1983 Monell claim against the DAO, contending that an office policy or custom of racially discriminating in jury selection caused McMahon to violate Wilson’s equal protection rights under the Fourteenth Amendment. (Second Am. Compl. ¶¶ 56-67.) The DAO contends that it is entitled to sovereign immunity. The Court must accordingly first analyze whether the DAO is entitled to immunity under the Eleventh Amendment before reaching the merits of Wilson’s Monell claim.

A. Sovereign Immunity

The Eleventh Amendment to the United States Constitution provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. The Eleventh Amendment bars suits brought against state agencies and state officials in their official capacity. See Melo v. Hafer, 912 F.2d 628, 635 (3d Cir.1990). “[T]he party asserting Eleventh Amendment ■ immunity (and standing to benefit from its acceptance) bears the burden of proving its applicability.” Christy v. Pa. Turnpike Comm’n, 54 F.3d 1140, 1144 (3d Cir.1995).

The Third Circuit determines whether an entity is entitled to Eleventh Amendment immunity by examining three factors: (1) the source of funding — ie., whether payment of any judgment would come from the state’s treasury, (2) the status of the agency/individual under state law, and (3) the degree of autonomy from state regulation. See Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir.1989). The factors are accorded equal weight. See Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 239-40 (3d Cir.2005).

i. Fitchik Factors

The DAO conceded at oral argument that it is “funded by the City” and that “any judgment would be paid by the City.” (Oral Arg. 36:2-3, ECF No. 244.) Therefore, the first Fitchik factor weighs against the DAO’s assertion of sovereign immunity.

The second inquiry is whether state law treats the DAO as “an independent entity or as a surrogate for (ie., as an arm of) the state.” Carter v. City of Philadelphia, 181 F.3d 339, 349 (3d Cir.1999) (internal citations omitted). The DAO is clearly not an arm of the Commonwealth of Pennsylvania. Indeed, “Pennsylvania’s Constitution expressly defines District Attorneys as county rather than state officers.” Carter, 181 F.3d at 348. The second Fitchik factor also weighs against the DAO’s assertion of sovereign immunity.

The third and final factor is the degree to which the DAO is autonomous from state regulation. See Fitchik, 873 F.2d at 659. “In Pennsylvania, the Attorney General... is without authority to replace a district attorney (who must be impeached, like other locally elected officials) and in Pennsylvania, unlike many other jurisdictions, the [Attorney General] has no inherent authority to supersede a district attorney’s decisions generally.” Carter, 181 F.3d at 353. The third Fitchik factor, therefore, also weighs against granting the DAO sovereign immunity.

ii. Prosecutorial v. Administrative Distinction

The DAO’s brief is largely unresponsive to Wilson’s analysis of the Fitchik factors. (See generally DAO’s Mot. Summ. J. (“DAO’s Mot.”), ECF No. 211-2.) The DAO instead contends that the Court should read into the Fitchik factors a pros-ecutorial versus administrative distinction; specifically that actions taken in a prosecu-torial rather than administrative function entitle the DAO to sovereign immunity, (Oral Arg. 41:9-13, 42:10-12.) The DAO relies on two cases — Munchinski v. Solomon, 618 Fed.Appx. 150 (3d Cir.2015) and Carter v. City of Philadelphia, 181 F.3d 339 (3d Cir.1999)— neither of which support its position.-

The DAO argues that the Third Circuit in Munchinski read the prosecutorial and administrative distinction into the second Fitchik factor when it summarized two pages of dicta in Carter as “recognizing that the possibility that Pennsylvania District Attorneys could be considered state actors to the extent that they are enforcing state law and performing other purely prosecutorial duties.” Munchinski, 618 Fed.Appx. at 157 (citing Carter, 181 F.3d at 352-53); (see also Oral Arg. 33:19-34:4.) This misstates the Third Circuit’s decision. In Munchinski, the Appeals Court applied the three Fitchik factors and found that the district attorneys were not entitled to sovereign immunity. See Munchinski, 618 Fed.Appx. at 156-57. Moreover, the Munchinski court cited the same passage that this Court cites from Carter, which notes that “Pennsylvania’s Constitution expressly defines District Attorneys as county rather than state officers.” Id. at 157 (quoting Carter, 181 F.3d at 349) (emphasis omitted).

Although Carter discusses the prosecu-torial versus administrative distinction in dicta, it does not reach the issue, finding the application of the Fitchik factors dis-positive. See Carter, 181 F.3d at 351. “[Application of our Fitchik factors compels us to find that in Pennsylvania the prosecutor’s office is not an arm of the state either generally or with respect to the managerial functions in question.” Id. at 351 n. 38. The DAO’s argument that a prosecutorial versus administrative distinction should be read into the Fitchik factors is incorrect and the DAO is not entitled to sovereign immunity.

B. Municipal Liability under Monell

Generally, a municipality will not be held liable under the doctrine of re-spondeat superior for the misconduct of its employees. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990). Rather, a municipality can only be liable under Section 1983 when a constitutional injury results from the implementation or execution of an officially adopted policy or informally adopted custom. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.1996) (citing Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). “Thus, although the municipality may not be held liable for a constitutional tort under [Section] 1983 on the theory of vicarious liability, it can be held responsible as an entity when the injury inflicted is permitted under its adopted policy or custom.” Id. (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018).

A successful Monell claim must therefore establish: (1) an underlying constitutional violation; (2) a policy or custom attributable to the municipality; and (3) that the constitutional violation was caused by the municipality’s policy or custom. See Monell, 436 U.S. at 658, 98 S.Ct. 2018. The Court has separately granted Wilson’s motion for summary judgment (ECF No. 212) seeking to apply offensive collateral estop-pel to bar relitigation of his Batson claim. See Wilson v. City of Philadelphia, No. 04-05396,177 F.Supp.3d 885 (E.D.Pa. Apr. 8, 2016) (ECF No. 247). Wilson has therefore established the requisite constitutional violation.

In Andrews, the Third Circuit distinguished between policies and customs:

Policy is made when a “decisionmaker possessing] final authority to establish municipal policy with respect to the action” issues an official proclamation, policy, or edict. A course of conduct is considered to be a “custom” when, though not authorized by law, “such practices of state officials [are] so permanent and well settled” as to virtually constitute law.

Andrews, 895 F.2d at 1480 (citations omitted). “In either instance, a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990) (citing Andrews, 895 F.2d at 1480).

While establishing a “policy” typically requires proof of some affirmative action by a policymaker, see Andrews, 895 F.2d at 1480, “custom” may be established by “evidence of knowledge and acquiescence.” Beck, 89 F.3d at 971 (citing Fletcher v. O’Donnell, 867 F.2d 791, 793 (3d Cir.1989), cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 591 (1989)). “This does not mean, however, that the responsible decisionmaker must be specifically identified by the plaintiffs evidence. Practices ‘so permanent and well settled’ as to have ‘the force of law’ [are] ascribable to municipal decisionmakers.” Bielevicz, 915 F.2d at 850 (citing Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir.1986)) (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018); see also Boyden v. Twp. of Upper Darby, 5 F.Supp.3d 731, 742 (E.D.Pa.2014) (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (“Thus, even if a custom ’has not been formally approved by an appropriate decisionmaker’, it ’may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.’”)).

The existence of a policy or custom, however, is insufficient on its own to establish municipal liability under Mo-nell. A plaintiff must also show that the policy or custom was the proximate cause of the injuries suffered. See Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir.1984). “To establish the necessary causation, a plaintiff must demonstrate a ‘plausible nexus’ or ‘affirmative link’ between the municipality’s custom and the specific deprivation , of constitutional rights at issue.” Bielevicz, 915 F.2d at 850 (citing Estate of Bailey by Oare v. County of York, 768 F.2d 503, 507 (3d Cir.1985) (stating that there must be a “plausible nexus between the policy.. .and the infringement of constitutional rights”)); see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). “As long as the causal link is not too tenuous, the question [of] whether the municipal policy or custom proximately caused the constitutional infringement should be left to the jury.” Tuttle, 471 U.S. at 851, 105 S.Ct. 2427 (citing Black v. Stephens, 662 F.2d 181, 190-91 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982)). When a municipal “policy or custom” is itself unconstitutional, i.e., it commands or authorizes constitutional violations, the causal connection is obvious and does not require independent proof. See, e.g., Monell, 436 U.S. at 694-95, 98 S.Ct. 2018 (finding causation evident where policy required . pregnant employees to take unpaid leaves of absence before those leaves were required for medical reasons); see also Tuttle, 471 U.S. at 822, 105 S.Ct. 2427 (stating that “no evidence... needed [in such a case] other than a statement of the policy”).

Whether an official has policy-making authority is a question of state law. See City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). In a claim involving the Philadelphia District Attorney’s Office, “it is ‘undeniable’ that the District Attorney himself ‘is the highest policymaker within the office.’” Estate of Tyler ex rel. Floyd v. Grossman, 108 F.Supp.3d 279, 297 (E.D.Pa.2015) (citation omitted). A policymaker can, however, delegate his policy-making authority. See Andrews, 895 F.2d at 1481. Here, the parties agree that both Castille and Chadwick are policymakers for purposes of Wilson’s Monell claim against the DAO. (JA 5304.)

i. Policy or Custom

Wilson contends that the DAO’s policy of discriminating in jury selection caused a violation of his equal protection rights. Wilson, however, points to no “official proclamation, policy, or edict” made by either Castille or Chadwick directing attorneys to discriminate in jury selection. See Andrews, 895 F.2d at 1480, Rather, Wilson contends that the DAO’s training on jury selection constitutes a matter of office policy. (Pl.’s Resp. to DAO’s Mot. Summ. J. (“Pl.’s Resp. to DAO”) at 25-26, ECF No. 224.) In support, Wilson cites Spell v. McDaniel, 824 F.2d 1380 (4th Cir.1987). The argument that a municipality’s training program constitutes “policy” as defined by Monell is unavailing as the Third Circuit has not adopted such a standard. Without an “official proclamation, policy, or edict” made by either Castille or Chadwick, Wilson fails to establish a policy of discriminating in jury selection. See Andrews, 895 F.2d at 1480.

Wilson does, however, sufficiently establish a genuine issue of material fact as to whether the DAO had a custom of racially discriminating in jury selection. Specifically, Wilson points to: (1) the McMahon training video; (2) Sagel’s jury selection lectures; and (3) Christie’s jury selection practices. Taken together, these three raise an issue of fact as to whether the DAO had a custom of racial discrimination in jury se