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Do Italian-Americans Jurors Have a Right Not to Be Excluded Based on Their Ethnicity?
A Recent Appellate Case Says The Answer Is Maybe

Tuesday, Sep. 09, 2003

A Pennsylvania jury convicted Joseph Rico of first-degree murder and sentenced him to life in prison. But Rico claims his conviction is invalid because, when jurors were chosen, those with Italian-American surnames were unconstitutionally excluded. These jurors, he argued, faced discrimination based on their ethnicity.

In 1986, in Batson v. Kentucky, the U.S. Supreme Court held that under the Constitution's Equal Protection Clause, jurors have a right not to be excluded from jury panels on the basis of race. Then, in 1994, in J.E.B. v. T.B. it held that jurors have a similar right not to be excluded from jury panels on the basis of sex, either.

But what if the basis for exclusion is not race, or sex, but ethnicity or national origin? This was the issue posed to the Pennsylvania Supreme Court in Commonwealth v. Rico. It was also ultimately addressed by the U.S. Court of Appeals for the Third Circuit in a later decision in the same case, Rico v. Leftridge-Byrd.

Neither court directly answered the question, but the Third Circuit suggested that it is, at least, a close one, and that ethnicity may indeed be a valid basis for a Batson challenge.

At a trial, both prosecutors and defense attorneys may attempt to get individual jurors stricken "for cause" from the initial set of prospective jurors, the "venire." To do so, they must persuade the judge that there is a reason the particular juror is likely to be biased. For every "cause" challenge to a juror, the attorney making the challenge must give a reason. And cause, of course, must be good cause: It can't just be racism or sexism.

Usually, these reasons come from "voir dire" - the process during which lawyers question prospective jurors to elicit information that might justify a "for cause" removal. (Among such information would be personal knowledge of the case, preconceived notions about the correct outcome, or a personal relationship with one of the parties, lawyers, or the judge.) For example, a potential juror who reveals during voir dire that he is the prosecutor's cousin would be challenged and stricken.

Once "for cause" challenges to jurors have whittled down the jury panel, prosecutors and defense attorneys can also use "peremptory" challenges. When they do so, the challenge will automatically be honored by the judge, and they need not give a reason.

But sometimes the reason may seem quite clear to prospective jurors: For instance, a prosecutor may strike all prospective jurors who share the same race as the defendant. As peremptory challenges are used, jurors of that race may disappear, one by one, from the jury box. And the defendant (as well as the jurors themselves) may reasonably begin to suspect that they are being stricken because of their race.

Juror experiences like this led to the ruling in Batson and its progeny - which have held that peremptory challenges cannot be used by any lawyer on either side to strike individuals on the basis of race or gender. Cases have made clear that these rules apply in both civil or criminal trials.

Every citizen has a right to serve on a jury - but for much of American history, that right was granted and withheld in a discriminatory fashion. Thus, lawsuits dating back to the late Nineteenth Century have challenged discriminatory state jury systems, which first excluded blacks and women from jury service entirely and later created exemption systems that resulted in very few women being called to serve. They also permitted both blacks and women to be struck with impunity through peremptory challenges - until Batson made clear that the practice, at least with respect to race, was unconstitutional.

Proving a Batson Violation: The Necessary Steps

How can a Batson violation be proved, given that those who make peremptory challenges, by definition, don't have to say why? Courts have agreed on a procedure to solve this apparent conundrum.

First, the court must determine whether Batson applies at all - asking, Are the jurors part of a cognizable group that is protected by Batson and its progeny? Members of a particular race would be such a group. So would men or women. But, again, Rico raises the question: What about ethnic groups?

A strong Batson prima facie case might go like this: Twenty percent of the venirepersons were African-American. After challenges for cause, the remaining prospective jurors were still twenty percent African-American. The prosecutor then exercised all of her allotted peremptory challenges against African-Americans, resulting in an all or nearly all white jury.

Third, the trial court - looking to the totality of the circumstances - must decide whether the record supports an inference of improperly based exclusions. The totality of the circumstances may include the nature of the case: Are all women being stricken in a case in which prosecutors allege the defendant raped a woman? Are all African-Americans being struck in a case in which the defendant, an African-American, is accused of getting in a bar fight with a white man?

If the judge finds that the record indeed supports such an inference, then the striking party must come forward with a race-neutral explanation for each juror stricken.

If the judge buys the explanations, the jury goes forward as is. But if the judge doesn't, then a remedy must be fashioned that will honor the excluded jurors' right to serve.

The Decisions Addressing Batson in Rico's Case

The trial court in Rico acknowledged that the defendant could make a Batson claim based on ethnicity. But the court also bought the explanations prosecutors gave for why they struck jurors who had Italian-American surnames. Thus, the jury was impaneled as is, despite the exclusion of Italian-American jurors.

After he was convicted, Rico appealed. But the Pennsylvania Supreme Court punted on the Batson issue, just as the trial court had. It assumed for purposes of argument (without deciding) that Batson protects Italian-Americans. But it upheld the trial court's factual determination that the challenges in Rico's case were ethnically neutral - and thus upheld Rico's conviction.

Rico then went to federal court, seeking habeas corpus review. But that review was limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). According to that statute the Third Circuit had only two questions to answer: Was the Pennsylvania Supreme Court's decision contrary to clearly established Supreme Court precedent? And, was it based on an unreasonable determination of the facts presented in the state court proceeding?

If the answers to both questions were no, Rico was out of luck: AEDPA is a Draconian statute that prevents defendants even from challenging their convictions based on, for instance, strong new evidence of innocence, or a serious error of law on a question the Supreme Court has not yet directly addressed.

But it also concluded, as the Pennsylvania Supreme Court had, that the state court did not unreasonably determine that the strikes were ethnically neutral. Thus, it upheld Rico's conviction.

In sum, even after all of the decisions in Rico's case, the question of whether a Batson challenge can be based on ethnicity has not been directly decided. It is thus ripe for U.S. Supreme Court review.

Does Batson Apply When the Reason for Exclusion Is Ethnicity?

If the Supreme Court does decide to address this question, what will it hold? Different courts and commentators have made different predictions.

Under the Equal Protection clause, laws that discriminate on certain based - such as race, sex, and ethnicity (national origin) - receive "heightened scrutiny" and thus are often struck down. Since ethnicity is on this list, many lower courts have assumed it is on the Batson list too - as an improper reason for juror exclusion through peremptory challenges.

But the two lists may not be the same: Some of the groups on the Equal Protection list may not be on the Batson list, too - as the Supreme Court's decision in J.E.B. v. T.B. can be read to suggest. The nature of the Equal Protection Right, Justice Blackmun wrote, is a right to "jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice." Not every group entitled to special protection under the Equal Protection Clause can prove a violation of this right.

The Court banned sex-based peremptories only after specifically drawing on the historical exclusion of women from jury service - and even from the vote. In his opinion, Justice Blackmun faulted sex-based peremptories in large part because, "for a woman, [the use of a sex-based peremptory] reinvokes a history of exclusion from political participation."

Moreover, Batson itself resulted from the long history of excluding African-Americans from juries. According to historical evidence, blacks and women have suffered a high and unique degree of exclusion from jury service, beginning with absolute and widespread exclusion by law.

Can other groups seeking Batson's protection show a comparable history of exclusion? The Supreme Court likely would require just such proof. But so far, most lower courts have ignored the need for such a showing. This may be because many were able to echo the "punt" strategy of the Rico trial court - ultimately concluding that the particular strikes being challenged were justifiable on some basis other than ethnicity.

In addition, in a recent opinion, United States v. Martinez-Salazar, the Court stated without analysis that jurors cannot be struck on the basis of "gender, ethnic origin, or race." (Emphasis added.)

The Supreme Court should resolve this important, undecided question of constitutional law in order to give guidance to trial judges nationwide, who are faced daily with jurors of varying ethnicities and with attorneys given free reign to strike them without cause.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University. Her other columns on discrimination issues may be found in the archive of her columns on this site. Grossman's law review Note, Women's Jury Service: Right of Citizenship or Privilege of Difference?, 46 Stanford L. Rev. 1115 (1994), further explores the history of women's jury service, the Batson doctrine, and J.E.B..

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