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Card v. United States6/28/2001
victions are Affirmed.
Ruiz, Associate Judge, dissenting in part, concurring in part:
Upon my review of the record, the issue of improper discrimination on the basis of religious affiliation in the exercise of peremptory challenges was raised with the trial court with sufficient particularity and timeliness, and the trial court rejected it on the merits. Thus, it is properly before the court for full, not plain error, review. I would hold that the equal protection doctrine prohibits peremptory strikes used to discriminate on the basis of religious affiliation, and that where there is a prima facie case that religious affiliation is the reason for a strike, the trial court must, at a minimum, conduct voir dire to determine whether the prospective juror's religious beliefs, rather than religious affiliation, disqualify that person from serving on the particular jury. I conclude that in this case a prima facie case was made that the prosecutor exercised a peremptory strike to eliminate a potential juror on the basis of his presumed affiliation with the Nation of Islam. As no voir dire was conducted to inquire into whether he was in fact so affiliated, and, if so, whether his beliefs disqualified him from serving as a juror in the case, the peremptory strike at issue impermissibly discriminated in the jury selection process. This constitutes per se reversible error. See Arizona v. Fulminante, 499 U.S. 279, 306-312 (1991).
The Religion-Based Challenge to the Peremptory Strike was Preserved for Appeal.
As the majority correctly observes, defense counsel's challenges to the prosecutor's peremptory strikes were initially and primarily focused on counsel's perception that the prosecutor's peremptory strikes revealed a systematic effort to exclude young black males from the jury. As voir dire progressed, however, and the prosecutor explained his strikes, defense counsel's arguments evolved and focused on the challenge based on religious affiliation, and in no uncertain terms objected to the strike of Juror 333 on such basis.
The majority bases its conclusion that only plain error review is necessary on the grounds that defense counsel's objections were untimely and not sufficiently precise to alert the trial judge to the legal basis for the challenge. I disagree. First, the timing of an objection to a peremptory strike cannot be made before the reason for the strike is revealed. Here, the religious basis for the strike of Juror 333 surfaced well into the process, as the prosecutor was trying to explain that the strike of that juror was not race-based. In making that explanation, the prosecutor for the first time stated that the reason for the strike was that he believed Juror 333 looked like "those people who follow Louis Farrakhan who could not be fair to the Government." This was immediately followed by defense counsel's objection to the court that "He [the prosecutor] could have asked him, Your Honor."
The trial court then ruled that the prosecutor's strikes were not race-based, noting, however, that the prosecutor's race-neutral explanation for striking Juror 333 was not "based on facts, observations and information and responses obtained during the voir dire," but on the prosecutor's "gut if you will reaction and he cited particularly the bow tie, the close cropped hair and other issues." The trial court concluded that " onsidering the fact that all other responses have been adequately made by [the prosecutor], I have to allow him that 1 on his gut feeling."
After completing the last two rounds of peremptory challenges and discussing certain other new matters brought up by the prospective jurors on the panel, the trial judge, wi
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