January 14, 2003
WHOSE PEERS?
N.J. appeals court: Overtly religious people can be barred from juries (The Associated Press, 01.13.03)The prosecutor during Fuller's trial bounced a white man who said he was a missionary and a black man wearing a long black garment and a skull cap. Neither potential juror was asked about his religious beliefs, but the prosecutor later said the black man was "obviously a Muslim."After the defense objected, the prosecutor told the trial judge that "people who tend to be demonstrative about their religions tend to favor defendants to a greater extent than do persons who are, shall we say, not as religious."
"They may very well tend to be more accepting of a person's professions of innocence in the face of facts to the contrary," the prosecutor argued.
That is permissible, said Appellate Judge Joseph F. Lisa, who wrote, "Individuals who are demonstrative about their religion do not share the same values, tenets or practices, and thus do not represent a cross-section of society."
Appellate Judge Dorothea O'C. Wefing concurred, but Appellate Judge Jose L. Fuentes said the challenges violated not only Fuller's right to equal protection, but the potential jurors' First Amendment right to free exercise of religion.
The majority has a legitimate point in there somewhere, but their application of it seems overbroad. Obviously you should be able to bar from a death-qualified jury someone whose religious scruples would forbid them to apply the death penalty. Likewise, if a potential juror believes homosexuality or abortion or some other action that may be legal to be nonetheless evil, it would hardly be fair to a defendant who will have to acknowledge such activity in the course of their defense to be judged by a that potential juror. These are cases where a particular religious belief conflicts with the law of society, and in such cases religion must yield.
However, the blanket statement that the demonstratively religious will tend to favor defendants seems neither necessarily true nor a permissible reason to bar an entire class of folks. One might as well claim that black jurors tend to favor black defendants and should therefore be barred from some juries. Few would find this acceptable. Nor is it apparent why the defense should not be able to bar the irreligious, since they, by the prosecutor's own admission, are less amenable to the defense. Or is the court saying that irreligion is the societal norm against which jurors should be measured?
Posted by Orrin Judd at January 14, 2003 7:48 AMDoes that mean that the judge in this case would have barred Joe Lieberman from the jury?
Posted by: Foos at January 14, 2003 8:37 AMThe judge seems to think that in order for the jury to "represent a cross-section of society," every individual on the jury has to be near the median of demographic statistics. But this means that only the "median citizen" gets represented, not a cross-section of America. Taken to an extreme, the judge's logic would allow the barring of blacks from juries, as you say - after all, they are only 13% of the population, and so a black juror doesn't "represent a cross-section of society."
Good point about the defense . . .
and they claim to have evidence to support these assertions?
This sort of stuff makes me support the idea of NO SELECTION process at all. First 12 persons to walk in are the jury.
This seems counter intuitive. I would have thought devout religious types in general would not be found of law breakers.
Posted by: Buttercup at January 14, 2003 7:05 PMMy wife is involved with the courts here in Baltimore, (sorry about the ambiguity, I value my anonymity) and she often tells me of overtly religious jurors being too forgiving in homicide cases she's involved in. Religion in jurors is easily exploited by the defense.
Posted by: some random person at January 14, 2003 9:25 PMThat's an interesting idea, Robin.
Also, I agree with Buttercup, sort of. Some
religions are more retributive than others.
I think kind of liberal, oozy, touchy-feely
religious are the main motivating force
behind opposition to capital punishment,
for example.
On the other hand, looking at history and
the vicious persecution that is the first
thing that comes to mind when I hear the
word "religion," the idea that overtly
religious people tend to be forgiving just
doesn't make the cut.
Harry:
The Joan of Arc trial ended a few years ago.