CrimLaw

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Somebody Passed Me the Ball.

Lex Communis has put the ball into my court. As part of a more indepth discussion on the anti-Catholic standard being applied to Pryor he states:

On the other hand, if a juror expresses a willingness to follow the law and consider all options that the law permits, then bouncing the juror would be impermissible. For example, if a prosecutor made it his practice to use his peremptories on Catholic (or Quaker) jurors who had stated their willingness to follow the law, that practice could and would be challenged as a basis for obtaining a new trial. [I'll defer to CrimLaw on this point, though.]

Hmmm . . . The first thing which comes to mind is this quote from Darrow on whom to choose during voir dire:

An Irishman is called into the box for examination. There is no reason for asking about his religion; he is Irish; that is enough. We may not agree with his religion, but it matters not; his feelings go deeper than any religion. You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.’

‘An Englishman is not so good as an Irishman, but still, he has come through a long tradition of individual rights, and is not afraid to stand alone; in fact, be is never sure that he is right unless the great majority is against him.

‘The German is not so keen about individual rights except where they concern his own way of life. Liberty is not a theory. It is a way of living. He has not been among us long, his ways are fixed by his race, and his habits are still in the making. We need inquire no further. If he is a Catholic, then be loves music and art; he must be emotional, and will want to help you; give him a chance.

‘If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others. Unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.

‘If possible, the Baptists are more hopeless than the Presbyterians. They, too, are apt to think that the real home of all outsiders is Sheol and you do not want them on the jury, and the sooner they leave the better.

‘The Methodists are worth considering; they are nearer the soil. Their religious emotions can be transmuted into love and charity. They are not half bad, even though they will not take a drink, they really do not need it so much as some of their competitors for the seat next to the throne. If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm.

‘Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both—in—one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt.

‘As to Unitarians, Universalists, Congregationalists, Jews and other agnostics, don’t ask them too many questions; keep them anyhow; especially Jews and agnostics. It is best to inspect a Unitarian, or a Universalist, or a Congregationalist, with some care, for they may be prohibitionists; but never the Jews and the real agnostics! And, do not, please, accept a prohibitionist: he is too solemn and holy and dyspeptic.

‘I have never experimented much with Christian Scientists; they are too serious for me.

“You may defy all the rest of the rules if you can get a man who laughs. Few things in this world are of enough importance to warrant considering them seriously. So, by all means, choose a man who laughs. A juror who laughs hates to find anyone guilty.

So, yes, religion has a long and venerable tradition of being called into question during jury selection.

Nowadays we don't question religion blatantly (at least not in the courts I practice in). We don't ask, "Are you a member of the Society of Friends or a Catholic?" Instead, in capital cases witherspooning is done to eliminate those who do not possess the "proper" belief in the death penalty which includes members of a number of different faiths. Like many have pointed out in the discussions concerning Pryor, it's not elimination just because you are a member of a certain religion - it's elimination because you dare to hold the beliefs of a certain religion. Depending on the makeup of a community a large percentage might be excluded by this method based upon religious beliefs and a result may be reached which is entirely out of sync with what an untainted jury of the vicinage might have done. An example might be Puerto Rico. Capital punishment is unconstitutional and the population - largely Catholic - vehemently stands in opposition to the death penalty. If the federal government decided to have a death penalty case there witherspooning would result in an entirely non-representative jury.

In non-capital cases prosecutors during voir dire will ask questions such as, "Does anyone have a religious or philosophical belief which requires them not to pass judgement on or punish others?"¹ I pop up, object about the unconstitutionality of the question, the judge overrules me, and the prosecutor continues his questioning. Only once have I seen a juror actually answer yes to that question. The judge asked the normal rehabilitation questions and the juror swore he could fulfill his duties. The prosecution moved to strike for reason and, over my objection, the judge granted the strike². However, I never got a chance to raise the issue on appeal because the case turned out favorably for my client.

So, yes, unfortunately, it is my experience that - even in the modern era - a religious person can be removed from a jury despite swearing that he can follow the court's instructions and the law.



¹ In Virginia voir dire is done en masse. General questions are asked to the group with follow up for those who indicate that the question applies to them.

² It's funny how rehab for the prosecutor is believable while rehab favoring the Defendant just never seems to work out.

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