Appellate Law

CA1: First finds a way to use Snyder to screw up a religious Batson challenge

By S. COTUS

US v. Girouard, 07-1244. We don?t see many ?consumer product tampering in violation of 18 U.S.C. § 1365" convictions. (?Girouard was a nurse with the veterans' administration.... She pricked or cut transdermal patches through their wrapping, thereby removing some of the narcotics they contained. She left the patches in the drug cart for later use on patients.?)   The defendant contends that the jury selection was tainted by some religious selection, which violates Batson v. Kentucky, 476 U.S. 79 (1986).  The First declares that they never held that Batson applies to religions.  (Read: prosecutors, go ahead, discriminate against Buddhists all you want.)  But, rather than directly addressing the issue, the First says that it wasn?t raised. 

The AUSA made all sorts of, quite frankly, embarrassing strikes.  Black people.  Jewish people.  People involved with their church. 

The District Court seemed fairly on the ball, going so far as to, without a motion, ask the prosecutor why he struck a black juror. On the other hand, without asking for a justification of a strike, the judge announced he was satisfied that there were all sorts of reasons for striking a Jewish lawyer.  (Because he is a lawyer.)

The First talks about Snyder and concludes that it requires that the judge consider all circumstances.  Then, it concludes that the defendant didn?t demonstrate the number of Jews in the pool, and because it was relying on self-identification, there is no indication of any real discrimination against Jews.  This seems wrong: the prosecutor was discriminating against self-identifying Jews.  In fact, there is no way to objectively know who is Jewish (or any religion), because anyone (in the US) can claim to be any religion and the government can?t second-guess them.  As crazy as this sounds, the First Amendment allows people to choose and switch their religious based purely on self-identification.  (While writing this post, I switched religions twice already.)  The First doesn?t really care for these details, because it is too anxious to affirm the conviction. 

It seems that this trial ran the risk of running into a Jewish high holiday.  The prosecutor ?struck? the black jurors (claim that it was because they were from inner-city neighborhoods);

Full post as published by Appellate Law and Practice on March 28, 2008 (boomark / email).