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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 3rd U.S. Circuit Court of Appeals ruled on Oct. 17. But the split court did not decide whether a strike based on religious affiliation alone is constitutional, since the 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,” Circuit Judge Julio Fuentes wrote in U.S. v. DeJesus. The government said it was unaware of the two jurors’ religious affiliations. Neither Ronald McBride nor James Bates stated one. But in his juror questionnaire, McBride said that his hobbies were church activities, that he read the Christian Book Dispatcher, that he held several biblical degrees, that he sang in church choirs and that he was a deacon and Sunday school teacher. He also disclosed 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, that he read the Bible and that his activities were church-related. From those responses, it was “certainly fair to infer” that the two are Christians, stated Fuentes, who was joined by District Judge William O’Kelley of the Northern District of Georgia. They agreed with U.S. District Judge Jerome Simandle that, “faced 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.” Jerry DeJesus was found guilty of illegal firearm possession by a convicted felon and sentenced to 110 months and three years of supervised release. In affirming the conviction, Fuentes and O’Kelley followed 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. But dissenting Circuit Judge Walter Stapleton found the distinction 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,” Stapleton wrote. The dissent relied on a Supreme Court case, J.E.B. v. Alabama, holding that strikes based on gender stereotypes were unconstitutional and strongly suggesting 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 wrote. The dispute over the strikes arose because McBride and Bates are black and their removal left only one black person in the jury pool. Defense lawyer Lisa Evans argued the strikes were racially motivated, which is prohibited by Batson v. Kentucky. Simandle then asked the prosecutor the reason for the strikes. For McBride, it was his religious involvement and ability to forgive his cousin’s murderer. As for Bates, his unwillingness to make eye contact with prosecutors demonstrated possible antigovernment bias and his “fairly strong religious beliefs” might prevent him from rendering judgment against another human being. Though both jurors had said they would follow the law and consider only the evidence in the case, the prosecution told Simandle “the answers about the strong [religious] beliefs outweigh � their ability to be fair and impartial jurors.” Evans said the prosecution was using the faith-based challenge as a pretext for race-based strikes. She pointed out that prosecutors did not strike a white minister, Jacquelin Wood, in an earlier trial of DeJesus on the same charges. The prosecutor explained that the first trial had ended in a mistrial and “we’ve learned from that experience. � It may very well have been, your Honor, some type of religious belief that infected or paraded into the jury’s province in the first trial.” The appeals court found that explanation “credible,” a finding bolstered by the prosecution’s striking, after Simandle allowed the strikes against Bates and McBride, of a white man who was a church trustee and head usher. The appeals court rejected Evans’ argument that strikes based on religious belief have a disparate impact on blacks, a group known for an “affinity to the Bible.” The argument was not raised during voir dire and lacked evidentiary support, Fuentes said. Also negating racial bias was the ultimate composition of the jury, with three blacks and one Hispanic, though the government still had three peremptory strikes remaining. “What’s troubling 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,” says Federal Public Defender Richard Coughlin, who says he intends to pursue the case further. Michael Drewniak, a spokesman for the U.S. Attorney’s Office, calls the issue of strikes based on religious belief “a Pandora’s box which we didn’t open.”

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