From this AP news story reported in the freedom forum (whatever that is):
Thoughts?
I couldn’t agree more.
Depends where you are. I’d say that Orthodox Jews, for example, do represent a cross-section of the society in Kings County, New York.
Secondly, can one truly make such a blanket statement about religious people favoring defendants. I, for one, would tend to favor the prosecution more than the defense, knowing that the defendant has gone through several “gates” (the police, the grand jury and the DA’s office, who all think that there’s enough of a case for trial). Of course, I would still demand that the state make it’s case (rather than have the defendant prove his.
Zev Steinhardt
Sorry to harp on about this, but the more I think about this, the more it gets to me.
So, suppose I live in New Jersey. There are certainly certain values that I share with most law-abiding residents of New Jersey. I value hard work, law and order, life and liberty and a strong sense of community. Fine. So then for what values that I hold am I being excluded? For believing in one God? For believing that my life (and the lives of my fellow Jews) should be followed by observing the commandments? Even though my holding these values do not affect anyone else (I’m not out there pushing my religion on anyone), I am no longer “sharing the same values?”
And precisely which values are on the officially approved list?
As for practices… am I no longer a member of society because I eat only Kosher? Does refusing to eat on Yom Kippur or eating only unleavened products on Passover make me ineligible for jury duty? Because I light a menorah on Channukah or pray daily?
Pray (pardon the pun), Judge Lisa, tell us which practices make me no longer a member of society that my representation means that I am no represent a cross section of it.
Lastly, I’m willing to bet that there are darn few Arizona Diamondbacks fans living in New Jersey. Does that mean that Diamondbacks fans can be barred from juries because they do not “represent a cross section of society?”
Zev Steinhardt
It’s well established that prosecutors cannot exercise their peremptory challenges on the basis of a potential juror’s race. So far as I know, there has never been any prohobition on challenging a juror on the basis of their religious beliefs.
Nor should there be any such prohibition. To analogize to the otehr clause of the First Amendment, you have every right to express your opinion that police and prosecutors are corrupt, or that Friends is the greatest program in the history of television. But you can legitimately be bounced from the jury via a peremptory challenge on the basis of either belief. I fail to see why religious belief is any different.
A little background:
Way back in the Dark Ages, there were “peremptory challenges.” The prosecution and the defense had an equal number of these, and could use them for any reason to remove a potential jury member. Do not confuse these with a “challenge for cause,” in which some reason had to be offered and accepted by the judge before the venireman could be removed. There are an unlimited number of challenges for cause, and only a set number of peremptory challenges.
Then along came Mr. Batson, a Kentucky resident who was tried for second-degree burglary and receipt of stolen goods. The prosecutors in his case used their peremptory challenges to remove all of the black members of the jury. Mr. Batson objected to this tactic, noting that he himself was black, and that the prosecutors were stacking the venirie deck against him, racially speaking. The prosectuors responded that peremptory challenges required no explanation - which, indeed, they did not. Mr. Batson was convicted.
He appealed, and ultimately the Supreme Court heard his case. In 1986, they decided that Batson was wrongfully convicted – that even though peremptory challenges had before this been more or less inviolate (I’m aware of Strauder, but keeping it simple here) they were now saying that peremptory challenges that purposefully exclude members of a certain race violate the Equal Protection clause.
Subsequent cases added to the basic principle, confirming that Batson could be violated even if the accused wasn’t the same race as the excluded jurors, that gender was, along with race, an impermissible reason for exclusion, and various other subtleties. Batson also laid out the basic procedure to deal with violations at the trial level. (To wit: if one side believes the other is using Batson-prohibited criteria, that side must make a prima facie case to the judge; if he agrees that a prima facie showing of impermissible discrimination in peremptory strikes has been made, the burden then shifts to the side making the strikes to provide a race-neutral explanation, which the judge accepts or rejects).
Turning our attention to the OP, the judge is essentially saying that religious persons are not a protected class under Batson, in the same way that race and gender are. The prosecution, and the defense, are free to use their peremptory strikes based on religious affiliation or appearance, according to this judge.
Just a bit of historical perspective.
- Rick
I agree and have no problem with this if the belief the potential juror holds can be shown to be a biasing factor.
Imagine a death penalty case where an Amish person is being considered for the jury. I would think his/her beliefs absolutely would preclude them from sitting on the jury (no matter the facts the Amish person will never vote to have the person put to death).
Sure - and there is plenty of case law that says that a person who has resolute convictions against ever imposing the death penalty may be excused from a capital jury.
This is a controversial tactic for another reason: many people believe that a “death-qualified” jury is, on the average, less likely to be sympathetic to an accused than a regular ol’ jury.
Thus far, however, death-qualified juries are legit.
More’s the pity.
- Rick
Bricker,
But then why would Joseph Lisa have needed to make the quoted statement? As minty suggests, you can be bounced for liking friends. Lisa seems to be saying that there must be some rationale, and that he is endorsing this particular one.
Minty, does the belief in question not have to have some relevance to the issues or individuals involved in the trial before you can be bounced for holding it?
And, in this case, the issue was not the content of the beliefs. It seems to have been that the prospective jurors had beliefs on religious issues, and were demonstrative about them.
I’m also puzzled - but perhaps wrongly - by the suggestion that demonstrative religious believers tend to favour defendants. My first reaction was that my stereotype is the reverse; demonstrative religious believers tend to be law-and-order types. But, on reflection, I realise that that’s may be connected with the fact that the “demonstrative religious believers” I’m most likely to come across in my community are evangelical fundamentalist Christians, and the stereotypical view of such people is that they are likely to be more judgmental than the population as a whole.
Do stereotypes like this have to have any demonstrated objective validity before they can be used as the basis for challenges to jurors?
It beats me, IzzyR. From where I sit, the judge didn’t need to reach the issue of whether the distinction was a rational one; he could have have merely pointed out that peremptory challenges require no rationale, as long as they don’t stray into Batson-prohibited territory.
So I don’t know why he made the statement.
- Rick
Thanks for the quick history lesson.
I still see no reason that religion shouldn’t be used as a factor in a peremptory chellenge.
You do not choose your race or gender. You are who you are. Further, being a particular race or particular gender doesn’t automatically mean you hold a given set of beliefs. However, you can show that for people who belong to a given religion. Of course, many people don’t even hew closely to their own religions but the judge seemed to account for this by sticking it to people who are ‘demonstrative’ of their own religion. I think it could be said that certain things may be safely inferred about that persons beliefs allowing them to be booted from a jury.
Also please note that my death penalty case with an Amish person was merely an example. Imagine a neo-nazi on trial for something. I would think a Jewish person might be likewise excludable from the jury as you could not reasonably count on his/her remaining dispassionate and objective. I’m sure people could come up with other instances where a problem might be foreseen.
Agreed, Whack-a-mole that there may be cases where one’s religion can legitimately be a concern with regard to a potential juror’s partiality. However, Judge Lisa’s statement makes it sound like relgious people are so “far out” (my wording) that they “do not represent a cross-section of society.”
Zev Steinhardt
Look for a lot of appeals from this case. The judge just set up big grounds for an appeal.
No. Any reason or no reason at all–except for race and (as Bricker points out) gender–is sufficient for the exercise of a peremptory challenge. The state only has to explain itself when the defense claims that the state was bouncing jurors for race or gender.
No. You can use one of your peremptory strikes to bounce a juror because you hate his taste in ties, because he collects stamps, or because he’s a follower of Fred Phelps. As I said, any reason or no reason at all, so long as it ain’t race or gender.
I wonder if it is just possible that the article is misquoting Judge Lisa, and added the words “do not” to his statement. Then, everything would fall into place.
Apparently it is not true that only race and gender are invalid resons for a preemtory strike. According to the article, NJ law forbids striking “members of a cognizable group on the basis of their presumed group bias”, of which race and gender would be obvious examples. So the question is whether overtly religious people are a “cognizable group”. And Judge Lisa might have said that since “Individuals who are demonstrative about their religion do not share the same values, tenets or practices” as each other, they therefore “represent a cross-section of society” and are not a cognizable group, and are not protected on that basis.
From the website listed:
This is self-contradictory.
If you want a cross-section of society, you darn well better not get twelve people who all think the same. Unless you think everyone is identical in the real world.
If it is a pre-emptory challenge, the prosecutor shouldn’t have to justify it (except if it seems to be racially based). If it is a challenge for cause, you should need more proof than “he was wearing a long black garment, so he was going to acquit”.
Add to that the basic idiocy of lumping all religions together. Comparing some Wiccan to the part-time pastor of the Free Will Baptist Holiness Church because they presumably think alike is just silly.
Whatever happened to Article VI of the US Constitution:
Regards,
Shodan
From the opinion:
The bit quoted in the OP is towards the end of the majority opinion. It’s poorly-written, but I think (given the New Jersey legal standards discussed earlier in the opinion) that the point is you don’t invalidate the required “cross-section of society” by striking “individuals who are demonstrative about their religion” because such people don’t share any particular values or characteristics. That is, a religiously demonstrative Buddhist won’t have anything much in common with a religiously demonstrative fundamentalist Christian or a religiously demonstrative Pagan. Thus, under New Jersey law (we’re not talking U.S. Con law here), it’s legal to use peremptory challenges on religiously demonstrative people.
Thanks minty!
So my speculation was wrong - the quote is from the opinion. But the reasoning is as I said - that the people involved don’t share values etc. with each other and are thus not a cognizable group.
The phrase “do not represent a cross-section” seems poorly worded - the “cross-section” issue is not whether the group being excluded is a cross section but rather whether excluding the group leaves the remaining people as a cross section. In this case, the ruling seems to be saying that since these people are of all types, excluding them does not preclude the rest of the pool from being a cross section.
Or something.
People with strong beliefs do tend to allow them to skew their judgement. Just look at how biblical fundamentalists react when presented with evidence for evolution; they cling to ever more ridiculous and unlikely scenarios. Indeed, a strong comparison can be made between these and the defense’s case in the O.J. Simpson trial.