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Although the U.S. Supreme Court has never extended its 1986 decision in Batson v. Kentucky — which barred the use of peremptory strikes to keep blacks off juries — to prohibit striking potential jurors who are members of white ethnic groups, the state courts and lower federal courts have consistently assumed that it would. Now, in Rico v. Leftridge-Byrd, the 3rd U.S. Circuit Court of Appeals has ruled that Pennsylvania’s Supreme Court got the issue right when it assumed that the Batson rule would apply to Italian-Americans, but ultimately rejected the defendant’s bid for a new trial after concluding that the prosecutor had offered valid, ethnically neutral reasons for striking five prospective jurors with Italian surnames. But the court also went beyond the narrow question in the case and suggested that Batson claims are much trickier when applied to white ethnic groups. Joseph Rico, who was convicted of first-degree murder in 1992 and sentenced to life in prison, won the first round in his appeals when the Pennsylvania Superior Court granted him a new trial in 1995, finding that the prosecutor systematically eliminated Italian-Americans from the jury. But Rico’s conviction was reinstated in 1998 when the Pennsylvania Supreme Court ruled that even if Batson should be extended to cover ethnic groups, the prosecutor’s explanations for each of his strikes were valid. Since then, Rico has been fighting a losing battle in the federal courts. In November 2001, U.S. District Judge William H. Yohn Jr. rejected Rico’s habeas corpus petition, concluding that the Pennsylvania Supreme Court’s decision was legally sound and that none of its factual underpinnings was clearly erroneous. The ruling on Thursday by a unanimous three-judge panel of the 3rd Circuit almost surely spells ultimate defeat for Rico since only a tiny percentage of federal appellate decisions are ever overturned. Rico’s only chances to win a new trial now are a petition to have his case reheard before all 14 judges on the 3rd Circuit or a petition to the U.S. Supreme Court. Judge Maryanne Trump Barry, in an opinion joined by senior Judge Edward R. Becker and visiting 8th Circuit Senior Judge Myron H. Bright, found that the narrow question before the 3rd Circuit was whether the Pennsylvania Supreme Court’s decision was “contrary to, or an unreasonable application of, clearly established federal law.” Answering that narrow question, Barry concluded that it was perfectly reasonable for the state court to assume that Batson would apply to ethnic groups. But Rico argued in the appeal that the Pennsylvania justices erred by failing to see that the prosecutors’ explanations for the strikes were a pretext for discrimination and should have been rejected by the trial judge. Barry parsed through the record and concluded that all of the prosecutor’s ethnically-neutral explanations for his strikes were valid. Only two of the strikes were “problematic,” Barry found, and “only because the trial court had by then observed that the prosecutor had struck several prospective jurors with what appeared to be Italian surnames.” When Rico objected to the strike of Vincent Georgi, the prosecutor explained that when he asked Georgi whether organized crime would affect his ability to be fair, Georgi “turned red” and seemed uncertain, and there was fear in his voice and demeanor, Barry found. The prosecutor added that those factors “in conjunction with his Italian background led me to believe he would not be a juror suitable with this case.” Barry concluded that the strike was valid because “a prosecutor’s perception that a juror fears the ‘mob’ is a permissible reason to exercise a peremptory challenge.” When Rico objected to the prosecutor’s strike of Susan Bratrolla, the prosecutor explained that Bratrolla was potentially subject to intimidation because her home in South Philadelphia in, as she herself called it, “the mob area,” was very close to the crime scene. But Rico argued that there was evidence of pretext which the trial judge ignored. The prosecutor, Rico noted, did not strike potential juror Ernesta Thomas, a non-Italian-American who also resided in South Philadelphia. But Barry found that Thomas “lived further away from the crime area than did Bratrolla.” Additional proof of the validity of the prosecutor’s race-neutral explanation came, Barry found, when he struck a juror named Eugene Oprocca, of Polish descent, because he lived “pretty close” to where the crime had been committed and remembered hearing that someone had been found dead in a car. Barry also found that the prosecutor “did not attempt to strike all prospective jurors with Italian surnames from the jury,” noting that Peter DeAngelis became a juror; that Jane Cola was eliminated by a defense peremptory challenge; and that Joanne Dinamoli became an alternate juror. Although Barry concluded that the Pennsylvania Supreme Court did not misapply federal law when it assumed that the Batson rule would apply to a prosecutor’s striking Italian-Americans, she also suggested that extending Batson to cover ethnic groups will prove to be tricky. “In the years following Batson … lower federal courts struggled to apply Batson and were uncertain whether, and if so, when, Batson could be extended beyond race for, of course, it was only race that was before the Batson court,” Barry wrote. Barry found that “the uncertainty continues to this day” despite the U.S. Supreme Court’s 2000 decision in United States v. Martinez-Salazar, which held that “a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror’s gender, ethnic origin, or race.” For Barry, the decision in Martinez-Salazar raised a slew of questions. “What, though, does ‘ethnicity’ or ‘ethnic origin’ mean and how does one define the ‘cognizable racial group’ to which Batson itself referred? And how does one define ‘race’ when the understanding of ‘race’ itself has changed over the centuries?” Barry wrote. Barry found that most trial courts have “learned to avoid having to determine the extraordinarily difficult question of when and where to draw the line.” Most courts, she said, have “simply assumed without deciding that Batson has applicability to racial or ethnic groups other than black Americans and then went on to dispose of the Batson issue, most often by finding that the prosecutor had (or had not) offered a race-neutral explanation for a strike sufficient to rebut a defendant’s prima facie case.” Such was the case in Rico’s trial, Barry found. “This makes sense, given the reality that, during the process of selecting a jury, there is little or no opportunity to ponder the extremely difficult questions that any extension of Batson beyond race or gender would present,” Barry wrote. “In the context of this case, for example, how does one even define ‘Italian-American’? Is an ‘Italian-American’ one who came from Italy and became a United States citizen? Or is it one who is a first- or second- or third-generation ‘Italian-American’? How much ‘ethnicity’ is enough?” Barry wrote. “What of the woman who has no Italian heritage but bears an Italian name because she took the name of her Italian — or ‘Italian-American’ — husband? And, how is one to even begin to know whether a man or woman is ‘Italian-American’ when his or her name is ethnically-neutral?” Barry wrote. Rico was represented in the appeal by attorneys F. Emmett Fitzpatrick Jr. and NiaLena Caravasos. Assistant District Attorney Marilyn F. Murray argued the case for the Philadelphia district attorney’s office.

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