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Refusing to expand the scope of the U.S. Supreme Court’s seminal decision in Batson v. Kentucky, a federal judge has ruled that prosecutors are not barred from using peremptory strikes to keep Italian-Americans off a jury because the Batson decision did not mandate that Italian-Americans are a “cognizable racial group.” In a three-page order in Rico v. Leftridge-Byrd, U.S. District Judge William H. Yohn Jr. of the Eastern District of Pennsylvania found that the Pennsylvania Supreme Court got it right when it rejected Joseph Rico’s argument that his trial was unfair because the prosecutor struck six jurors with Italian surnames. Yohn found that under the Antiterrorism and Effective Death Penalty Act, federal courts cannot disturb the state court rulings unless they either result in decisions that are “contrary to” or involve an “unreasonable application” of “clearly established federal law.” Rico failed to meet the act’s strict standard, Yohn said, because his federal habeas corpus petition “points to no other U.S. Supreme Court precedent that recognizes Italian-Americans as a cognizable racial group so it cannot be said that the Supreme Court of Pennsylvania violated ‘clearly established federal law,’ as determined by the Supreme Court of the United States.” Rico was sentenced to life imprisonment after he was found guilty of first-degree murder. He won a new trial in his first round of appeals when the Pennsylvania Superior Court held that the prosecutor’s peremptory strikes were illegal. But in 1998, the Pennsylvania Supreme Court reversed and reinstated Rico’s conviction. Five of the seven justices wrote opinions. The majority opinion by Chief Justice John P. Flaherty Jr. was accompanied by four concurring opinions. Justice Russell M. Nigro was the lone dissenter. Flaherty said it was up to the trial court whether the Italian-American jurors were properly struck. “The appropriate review is whether the trial court’s findings were clearly in error. Here, the trial court found that the prosecutor’s reasons were ethnically neutral based on the testimony and its observations … ,” Flaherty said. “Giving deference to the trial court’s findings grounded on credibility determinations, we find no clear error that would warrant a disturbance of the trial court’s conclusions.” But Flaherty also addressed the more general question of whether Batson can ever be extended to ethnic groups. To succeed in such a challenge, Flaherty said, a defendant would have to show that his ethnic group is “cognizable.” And to do so, Flaherty said, the defendant would have to meet the four-part test in the 3rd U.S. Circuit Court of Appeals’ 1988 decision in United States v. DiPasquale. It calls for proof that the ethnic group: � Is defined and limited by some clearly identifiable factor. � Possesses a common thread of attitudes, ideas or experiences. � Shares a community of interests such that the group’s interest cannot be adequately represented if the group is excluded from the jury selection process. � Has experienced or is experiencing discriminatory treatment and is in need of protection from community prejudice. Justice Ronald D. Castille, in his concurring opinion, said it was time for the U.S. Supreme Court to clarify the matter. “I take this opportunity to urge the United States Supreme Court to clarify the outer limits of Batson so that our trial courts may be relieved of the albatross which we must place around their necks for the present,” he said. Castille said the cognizability standard adopted by the majority could be troublesome, but that the court was forced to create it because the U.S. Supreme Court hadn’t resolved all the issues surrounding Batson, such as whether ethnic groups are included. Although the U.S. Supreme Court never specifically said peremptory challenges can be used on the basis of a juror’s ethnicity, Castille found that it was logical under the equal protection doctrine that discriminating on the basis of ethnicity would be prohibited. If that logic were correct, Castille said, attorneys could be forced to note the ethnic background of each potential juror and raise a Batson challenge any time a juror with an identifiable ethnic background was struck. Castille found that the DiPasquale test could force the courts to engage in a “tedious fact-finding process at the jury selection stage, generate inconsistent determinations on whether certain ethnic groups are cognizable, and ultimately present this court with intractable legal issues concerning what facts establish legal ‘cognizability.’ “ The only choices then for the court, he said, would be to hold that either all ethnic groups are cognizable under Batson or that no ethnic group is. Castille called the first choice “absurd” and said that while he would be in favor of the latter, it might violate equal protection. Instead, Castille said, Batson should not be applied to any group except those based on race or gender. “I believe that these are compelling indications that the United States Supreme Court would not — and should not — make ethnicity a prohibited basis of discrimination in the jury selection process,” Castille wrote. Justice Stephen A. Zappala used his concurring opinion to reiterate his view that peremptory challenges are problematic and should be abandoned completely. “I respectfully suggest once again that ‘the entire process would be better served by abandoning the use of peremptory challenges altogether, trying cases before the first group of twelve jurors randomly chosen from the venire, and allowing only challenges for cause,’ ” Zappala said. Nigro, in a dissenting opinion, also said he agreed with Castille that putting the burden on the trial courts to decide whether certain ethnic groups are cognizable could cause problems. But Nigro said the cognizability test adopted by the majority was unfair to individuals raising a Batson claim because it imposed too great a burden of proof. “Contrary to the findings of the majority, the facts of record indicate the trial court did not simply accept the prosecution’s explanations for striking Italian-American venirepersons. Instead, the trial court repeatedly voiced its frustration with the prosecutor’s tactics and in fact, created a detailed record regarding the prosecution’s use of its peremptory strikes against Italian-Americans,” Nigro said. “The majority prospectively puts the issue of cognizability in the hands of the trial court while ignoring the fact that the trial court in the instant case did not have the benefit of a determination of ethnicity as a cognizable group.” FEDERAL REVIEW Now Yohn has ruled that the state supreme court’s decision was not “contrary to” nor an “unreasonable application of” federal law. Yohn found that Batson and its progeny established a method for recognizing cognizable racial groups that the federal appellate courts have broken down into factors. The Pennsylvania Supreme Court correctly applied the 3rd Circuit’s DiPasquale test, Yohn said, and concluded that Batson does not mandate that Italian-Americans always are a cognizable ethnic group. “The Supreme Court of the United States might eventually hold that the Supreme Court of Pennsylvania’s application of those tests was incorrect, but … the potentially incorrect result of an application of law does not make the application unreasonable,” Yohn wrote. Pennsylvania’s prediction was probably accurate, Yohn said, considering the U.S. Supreme Court’s decision in J.E.B. v. Alabama, one of the last major cases interpreting Batson. Yohn found that J.E.B. signaled “the end of the expansion of groups to be specially protected during voir dire.” Rico was represented by attorney F. Emmett Fitzpatrick. Philadelphia Assistant District Attorney Thomas Dolgenos argued the case for the Commonwealth.

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