Some Juror Exclusion Policies Are a Real Crime

Last week, a court in Florida issued a clear command to members of the clergy: When it comes to juries, thou shall not serve. In a victory that has attracted national attention, prosecutors convinced an appellate court that members of the clergy may be stricken by prosecutors as inherently too soft on defendants.

The clergy is not alone. Across the country, a debate rages over which groups can be constitutionally stricken from juries. The Rev. Robert Cook may have been relieved that he would not be serving on the battery trial of Jason Rodriguez. However, Cook soon learned that the reason the prosecutor struck him from the jury was not about what he said but what he was: a minister.

Florida Assistant State Atty. Alan Johnson explained that “this is a person [who] listens and deals with the problems of a large number of his community. That’s what is troublesome.” The prosecutor insists that he was simply performing the time-honored practice of jury selection, following his hunches on the most favorable jurors. Yet, these “hunches” have often been based on prejudice or stereotype. For example, it was long believed that African American jurors were generally pro- defense. In 1986, the U.S. Supreme Court found such race-based challenges to be unconstitutional. However, late last year, a federal court in Pennsylvania held that prosecutors can strike Italian Americans based on their Italian surnames.

The premise of the most recent category for exclusion is that clergy members are “too sympathetic.” Of course, there is no statistical proof that clergy members are more sympathetic to defendants.

In fact, some religions make John Ashcroft look like an ACLU lawyer. Recently in Iran, a murderer was sentenced to be placed into a sack and thrown off a cliff. If he survived the rocky decline, he was to be removed and hanged. Hard to see any clerical mollycoddling there.

Florida is not the only state that allows exclusion of clergy by statute or through peremptory strikes. What is most disturbing is not just the exclusion of certain groups but those that make the cut. For example, in 1996, an alternate juror, Barbara Adams, was allowed to sit on the high-profile trial of former Arkansas Gov. Jim Guy Tucker despite the fact that she was a self-professed officer in the United Federation of Planets. Adams showed up every day in a Star Fleet dress uniform with both “phaser” and “tricorder.” She was removed from the jury only because she violated the court’s directive to not speak with the media. A phaser-toting Star Fleet officer is one thing, but a rabbi is something else entirely.

In the meantime, the rulings on clergy and Italian Americans only deepen the debate over the purpose of such peremptory challenges in jury selection. While defendants are assured of a randomly selected jury of their peers, we allow lawyers to remove people based on personal characteristics that do not show bias or conflicts with a particular defendant or case. Lawyers are allowed to pick and prune a jury into a more appealing image for their clients. At the end of this process, American juries often look as natural and random as coiffed French poodles.

We can hardly guarantee a jury that reflects a community when we actively exclude whole categories of that community. Of course, categorical exclusion may be welcome news when you are sitting next to a guy dressed as a Klingon warrior in a jury pool.

However, there are high costs to such exclusions since these groups help define our collective values of justice. To exclude them from the jury is like crafting an artificial society without particular ethnic or cultural influences. That may serve the interests of a defendant or a prosecutor but it will hardly serve the interests of justice.

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Jonathan Turley is a constitutional law professor at George Washington University.