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Members of the clergy are fond of reciting this line from the Gospel of St. Matthew: “Judge not, that you not be judged.” As a result, they often are perceived by prosecutors as overly sympathetic to defendants. That’s precisely what Palm Beach County, Fla., assistant state attorney Alan Johnson said about the Rev. Robert Cook, a potential juror, during jury selection in the March 2001 criminal trial in Palm Beach Circuit Court of Jason Rodriguez. Rodriguez was convicted and appealed on the basis of the peremptory striking of the black clergyman during voir dire. In an opinion released Sept. 25, a three-judge panel of the 4th District Court of Appeal unanimously affirmed former Circuit Judge Howard Berman’s ruling supporting the peremptory challenge. It cited as precedent the 4th District Court of Appeal’s 1989 ruling in McKinnon v. State, which accepted peremptory challenge of clergy on the basis that they are “overly sympathetic.” The rulings apply to both civil and criminal trials. “If it were a challenge to pastors of a particular religion, it would be constitutionally impermissible,” says University of Miami law professor Laurence Rose, director of the school’s litigation skills program. “That would restrict an individual’s free practice of religion. But this concerns profession, not belief.” But Nova Southeastern University law professor and appellate specialist Bruce Rogow says the state’s rationale for striking clergy is bogus. “The idea that such people are all bleeding hearts is completely fatuous,” he says. “A minister can just as well be stone-hearted. The underlying logic is flawed because it’s a cover for race-based discrimination.” Unlike the 4th District Court of Appeal, which covers Palm Beach and Broward counties, there are no 3rd District Court of Appeal precedents governing the Miami-Dade and Monroe circuit courts on the issue of peremptory challenges of clergy. Rodriguez, a convicted felon with a long history of arrests, was facing charges of battery on a law enforcement officer and resisting arrest with violence. Assistant state attorney Johnson used a peremptory challenge to dismiss Cook, a black pastor with a 125-member congregation in Wellington, Fla. The peremptory challenge drew a Neil objection from Rodriguez’s counsel, West Palm Beach attorney Robert Gershman. In Florida, state courts have refined the law regarding objection to peremptory challenges. Such objections are known as Neil or Slappy objections, based on the 1984 State v. Neil and 1988 State v. Slappy Florida Supreme Court decisions. In both those cases, the high court held that the state must provide a race-neutral reason for striking a potential juror. During the Rodriguez voir dire, Johnson gave as his reason for striking the Rev. Cook that “this is a person that listens and deals with the problems of a large number of his community. That’s what is troublesome.” Gershman responded that Cook had answered the prosecutor’s concerns and demonstrated he could be “fair and impartial.” But Judge Berman ruled that the prosecutor’s rationale for striking Cook was “reasonable.” Rodriguez was tried, convicted and sentenced to five years in prison on each count. Shortly after sentencing, his representation was taken over by the Palm Beach County public defender’s office, which appealed to the 4th District Court of Appeal, arguing that Berman erred in allowing the striking of Cook. The 4th District Court of Appeal disagreed. “This is not a sweeping ruling,” says Melynda Melear, a Florida assistant attorney general in West Palm Beach who argued the state’s defense of the appeal. “Striking the prospective juror was based on facts elicited during voir dire.” Attorneys are not allowed to use peremptory challenges in an unrestricted way. In 1986, the U.S. Supreme Court held in Batson v. Kentucky that race-based peremptory challenges are not permissible. State and federal courts have extended the prohibition to other protected areas including ethnicity, gender and religion. Brandeis University legal scholar Jeffrey Abramson calls this “modified, explain-yourself-peremptory.” Except for challenges based on protected status, however, attorneys have considerable flexibility. “Just saying, ‘I didn’t like the way the juror looked at me when he came into the room’ — that’s perfectly fine,” says professor Rose. The critical point of her argument, Melear says, was that “the challenge was race-neutral.” But Palm Beach County public defender Paul Petillo, who argued the Rodriguez appeal, doesn’t buy that. “This is the kind of justification that can appear race-neutral but is actually a smokescreen for racial reasons,” he says. “And even if the challenge passes the test of race-neutrality, judges are supposed to do a genuineness analysis — is that the prosecutor’s real reason for striking or is it a pretext?” In his appeal, Petillo contended that Judge Berman compromised his ability to test for genuineness. He argued that it was the judge himself who thrust the “overly sympathetic” reasoning on the prosecutor and that, in colloquy with counsel, it was Berman who first cited McKinnon as the relevant case law. “It’s almost like the prosecutor had never thought of that before and tried to glom that onto his reason,” Petillo says. Berman resigned from the bench in September 2001, amid allegations he sexually harassed several court system personnel. In her answer brief, Mylear argued that the state had shown the genuineness of its concerns about Cook in voir dire. She pointed out that Johnson had prefaced questions to Cook with the phrase “Since you are a pastor.” She also cited an exchange in which Cook was asked if there was anything in his “personal beliefs or religious beliefs” that might interfere with his “sitting in judgment on another human being.” “We didn’t have to show he was unfit,” Mylear says. “Simple intuition is sufficient justification if it’s race-neutral.” She stressed that the one other black member of the jury pool was selected for the Rodriguez jury. Still, Rogow is skeptical. “Clergy make special targets because of their influence in the black community,” he says, noting that he recently tried a Palm Beach County case in which a black minister was peremptorily struck. He also points out that in McKinnon — the 4th District Court of Appeal precedent in which the challenge of a black clergywoman was upheld — the case was remanded for retrial because two other challenges to black jurors on the panel were not proved to be race-neutral. “The truth is that neither side wants a fair jury,” Rogow says. “And as long as stereotypes based on race are with us, prosecutors will find a cover story that will suit their needs.” Some legal theorists have called for the complete elimination of peremptory challenges. Brandeis’ Abramson argues that such challenges violate the spirit of the Sixth Amendment, which the U.S. Supreme Court has interpreted as requiring that juries be chosen from “a representative cross-section of the community.” “In the early stages of jury selection, we reach out to a cross-section of the population,” Abramson wrote in a recent article. “The problem with peremptory challenges is that, at the last moment, they permit parties to switch the rules. … Only a representative jury is a truly impartial one.” Assistant public defender Petillo echoes that view: “It’s almost like we no longer want juries to include the whole community.”

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