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Card v. United States6/28/2001
the voir dire." Although it found no such objective basis for the strike of Juror 333, referring to the justification of that strike as "less than acceptable" and being based solely on the prosecutor's "gut feeling," the court concluded that one strike based on "gut feeling" did not establish systematic exclusion, nor was it race-based. At the same time, the trial court expressed understanding for the prosecutor's concern about jury nullification by a Farrakhan follower based on its own experience with jurors refusing to convict .
The peremptory strike process then continued, apparently because some defense strikes remained at the time of the renewed Batson challenge. Once complete, counsel again "renewed" the Batson challenge, this time on the ground that Juror 1, who had since been seated, had closely cropped hair and had worn a bow tie on both days of the peremptory strike process. When the trial court asked how the Batson objection could be renewed when the prosecutor had not stricken Juror 1, counsel clarified the theory as being that the prosecutor's stated basis for striking Juror 333 (i.e. affiliation to Louis Farrakhan) was really just a "pretext" for striking young black males. Counsel explained that the prosecutor had stricken Juror 333 but not Juror 1, "another person in the exact same situation with close cropped hair, bow tie, unemployed but just older. It was clearly age vs. age, sex, and race." The trial court responded, "Counsel, I have already heard the Batson challenges with respect to all of the jurors that were struck." Soon thereafter, the court asked all counsel whether there was "any reason" not to excuse the unselected voir dire panelists, and counsel unanimously indicated there was not. The unselected panelists were dismissed, and the court addressed the selected jury regarding scheduling and such, then dismissed them for lunch. The jury had not yet been sworn.
At this point, appellants' counsel indicated that there were still issues concerning jury selection. They referred to the previous Batson objection to strikes of young black males and offered the opinion that two Wednesday morning strikes of unemployed young black males were "improper." However, the paramount issue, as stated by counsel, was the prosecutor's inability to offer "what I believe that the court perceived as a proper explanation" for striking Juror 333. That counsel then made the following statement, which we quote almost in its entirety since appellants' Batson claim rests on it:
[The prosecutor] stated that his gut reaction and the court accepted it and I believe that the court indicated something to the effect of yes, he had close cropped hair and he did have a bow tie and that we had juries --cases before which ended in 11 to 1, basically a hung jury. Your honor, Juror Number 1 . . . has close cropped hair. He has a bow tie. He had a bow tie on yesterday . . . . Your honor, that undercuts [the prosecutor's] argument. He is saying that he struck the Juror because he is Muslim and I think first of all, that's improper. It is improper and I was also shocked when the court condoned that statement, your honor. What the court is suggesting is that people of the Muslim religion or the Muslim practice cannot be fair and impartial. Your honor, I was shocked that the court joined in that comment. [The prosecutor] represents the government and those may be his personal thoughts. But, your honor, that's not a proper -- I objected when there were jurors here who were sexist towards the female lawyers and the female defendant calling the female lawyers "Honey." I also objected strenuously when we had the one juror who we believed exhibited certain racial attitudes and I certainly would object to any su
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