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The equal protection clause does not bar peremptory challenges of potential jurors who evince a “heightened” religious involvement that might make them less likely to convict, the 3d U.S. Circuit Court of Appeals said on Oct. 17. But the 3d Circuit panel, which split 2-1, did not decide whether a strike based on religious affiliation alone is constitutional. The U.S. Supreme Court has not addressed the issue and there is no consensus among the circuits. “Even assuming that the exercise of a peremptory strike on the basis of religious affiliation is unconstitutional, the exercise of a strike based on religious beliefs is not,” Judge Julio Fuentes wrote. U.S. v. DeJesus, No. 02-1394. The issue arose in a New Jersey federal court when the prosecution spent two of its peremptory challenges to eliminate two potential jurors, both of whom were African-American, based on their answers in a juror questionnaire. Defendant Jerry DeJesus was subsequently convicted of illegal firearm possession by a convicted felon, sentenced to 110 months’ incarceration followed by three years’ supervised release. The prosecution said it was unaware of the jurors’ religious affiliations and neither Ronald McBride nor James Bates stated one. But in his questionnaire, McBride said that he held several biblical degrees, that he read the Christian Book Dispatcher, sang in church choirs and was a deacon and Sunday school teacher. He also said that his cousin had been murdered but he had learned to forgive the killer. Bates, in his questionnaire, said that he was a church officer and trustee, read the Bible and that his activities were church-related. From those answers, it was “certainly fair to infer” that the two are Christians, Fuentes said. His opinion was joined by U.S. District Judge William O’Kelley of Georgia, who was sitting by designation. Fuentes quoted trial Judge Jerome Simandle, who had said, “[F]aced with a prospective juror whose answers to neutral questions regarding hobbies, pastimes, reading materials, television programs and the like reveal a rather consuming propensity to experience the world through a prism of religious beliefs, it is rational for a prosecutor to act upon the concern about the reluctance to convict.” In upholding the conviction, Fuentes said that he and O’Kelley were following the lead of the 7th U.S. Circuit Court of Appeals and state courts that distinguish between a strike motivated by religious beliefs and one motivated by religious affiliation. Dissenting, U.S. Circuit Judge Walter Stapleton found that distinction to be a false one, stating that both were classifications based on religion. “A prosecutor may not, consistent with the Equal Protection Clause, infer solely from a prospective juror’s race, gender, or religion that he will be unwilling to sit in judgment of another, and then offer that unwillingness as a permissible basis for a peremptory challenge,” he wrote. His dissent relied on the Supreme Court’s 1994 case, J.E.B. v. Alabama, 511 U.S. 127, which held that strikes based on gender stereotypes were unconstitutional and strongly suggested that stereotype-based strikes were barred for other classifications that receive heightened equal protection scrutiny, including race and religion. A prosecutor may strike a juror because of a belief that has a religious basis but may not use a religious affiliation or practice as “the sole basis for attributing a particular belief to the juror,” as occurred here, Stapleton said. The removal of McBride and Bates from the pool left only a single African-American panelist. Defense lawyer Lisa Evans argued the strikes were racially motivated, which is prohibited by another Supreme Court ruling, Batson v. Kentucky, 467 U.S. 79 (1986), prompting Simandle to ask the prosecutor the reason for the strikes. Although both jurors had said they would follow the law and consider only the evidence in the case, the prosecution told the judge that their “answers about the strong [religious] beliefs outweigh . . . their ability to be fair and impartial jurors.” Federal Public Defender Richard Coughlin said he intends to pursue the case further. “What’s troubling,” he added, “is the idea that jurors can be excluded based on religious practices absent any indication of a connection that would affect their ability to sit as jurors and follow instructions like anybody else.” A spokesman for the U.S. attorney’s office called the issue of strikes based on religious belief “a Pandora’s box which we didn’t open.”

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