Houston criminal defense lawyer Mark Bennett is trying to change a familiar moment in Texas voir dire: the removal, for cause, of the "judge not" juror.
"In almost every criminal jury selection I've seen," he explains at his blog Defending People,
there has been at least one juror who has said that she is unable, because of religious beliefs, to judge other people. Almost universally and without further inquiry, the lawyers have not allowed these people to serve as jurors. That the defense lawyers (who probably want such people on their juries) don't try very hard to keep them has always rankled me a little bit.
The same juror, if questioned respectfully, would likely say that she can agree to render unto Caesar and decide whether the government has proven a violation of the law. After all, a criminal trial is not about moral guilt; it's not about who goes to heaven and who goes to hell; it's about whether the government, following all of the rules, can prove beyond a reasonable doubt that the accused violated the particular law alleged in the accusation.
This is fascinating. It's as though Mark Bennett and his "judge not" jurors are standing on a philosophical spot where two different -- and difficult to reconcile -- Supreme Court doctrines are converging.
Batson from one direction . . .
From one direction you have Batson v. Kentucky and J.E.B. v. Alabama ex rel. T.B., which hold that the state may not strike jurors because of their race or their sex. The Court has not yet said whether the state can strike jurors because of their religion; in Davis v. Minnesota in 1994, the Court refused to review a Minnesota decision allowing such strikes. But scholars like Harvard's John Mansfield (writing in the Seton Hall Law Review in 2004) believe that religion-based strikes must inevitably be banned under Batson and J.E.B.:
[H]ow can a peremptory challenge based on sex be disallowed, but a peremptory challenge based on religion allowed, without holding that the right to free exercise is less weighty than the right to be free from sex discrimination?
Lower courts seem to anticipate the same ruling (I've cited a few in the note below), and they're struggling to identify a line between religious affiliation, which they think will not be allowed as a basis for peremptory strikes, and religious activities, which they think will be okay. As you can imagine, the line isn't what you'd call bright.
Witherspoon from the other . . .
From the other direction you have Witherspoon v. Illinois and Wainwright v. Witt (I still can't get a good free link for Witt), which together hold that when a prospective juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath," the trial court may remove that juror for cause. Under this doctrine, people who would refuse to impose the death penalty on religious grounds are routinely removed from juries in death cases. It's also the doctrine that allows removal of "judge not" jurors from criminal juries of all kinds.
In Lockhart v. McCree in 1986, the Supreme Court held that removing death penalty opponents under Witt did not violate the "fair cross-section rule" imposed by a different string of cases. But the Court hasn't said anything about whether removing them might deprive the jurors themselves of their free exercise of religion, and thus violate the logic of Batson and J.E.B. At a time when court-watchers wonder how the justices' own religious faiths are shaping the Court, the question is more interesting than ever.
. . . what happens when they meet?
So, back in Texas, imagine Mark Bennett questioning his "judge not" juror. "My Christian faith requires me to follow the teachings of Jesus," she says, "and Jesus said 'judge not, lest ye be judged.'" The prosecutor has been reading lower-court cases and encourages her to say this is just a religious "belief," and doesn't rise to the level of her religious "affiliation." No, she insists, it's part of the essence of her understanding of Christianity itself, a critical way she exercises her faith, and it would make it very hard for her to pass judgment on the defendant.
If Batson requires us to leave that juror on the panel, but Witt says we should remove her, Mark's case won't be over for a long time.
In his Miller-El v. Dretke concurrence in 2005, Justice Breyer briefly reviewed the lower-court cases that had addressed whether Batson should extend to religion, on his way to concluding that we should get rid of peremptory strikes altogether.
Lower-court cases with fairly extensive discussions of the Batson/religion issue include:
- U.S. v. DeJesus, 3rd Cir. 2003, drawing "distinction "between a strike motivated by religious beliefs and one motivated by religious affiliation."
- U.S. v. Stafford, 7th Cir. 1998: "[I]t would be improper and perhaps unconstitutional to strike a juror on the basis of his being a Catholic, a Jew, a Muslim, etc.," but it would be "proper to strike him on the basis of a belief that would prevent him from basing his decision on the evidence and instructions, even if the belief had a religious backing."
- United States v. Brown, 2nd Cir. 2003: "We believe that [the principles underlying Batson and J.E.B.] apply as plainly to jury selection based solely on a venire member's religious affiliation" but the peremptory strike at issue might have been based on "participation in religious activities" rather than affiliation, so the trial judge's decision wasn't plain error.
- Highler v. State, Indiana Court of Appeals 2005: "We hold that the use of a peremptory challenge to strike a juror because of the juror’s race, gender or religious affiliation violates the juror’s right to equal protection of the laws. The juror’s affiliation is to be distinguished from religious beliefs that prevent the juror from following the law."
- State v. Fuller, New Jersey Supreme Court 2004: "We discern, in the absence of a definitive ruling from the United States Supreme Court, an emerging consensus to extend the equal protection analysis of Batson and J.E.B. to peremptory challenges based solely on religious affiliation and to find those challenges unconstitutional. Challenges based on religious beliefs or religious activities, however, are generally permitted."
If you know of cases in the pipeline on this, I'd love to hear about them, and I'm guessing Mark Bennett would too.
(Photo by Floyd Nello at http://www.flickr.com/photos/89492733@N00/348107319/; license details there.)