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April 5, 1997


The opinion of the court was delivered by: SPATT

 SPATT District Court:

 Presently before the Court is a relatively narrow issue: whether the Government violated the rule in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986) when it exercised its peremptory challenges to excuse a number of potential jurors who are ostensibly of the Jewish faith or have a relationship with persons who are Jewish. This challenge however, opens the door to a several important questions: whether persons of the Jewish faith are protected by Batson ; would it be as a race or a religion; and if Batson does apply to what relationship, if any, does it extend?

 I. Background

 This case involves a criminal indictment of officers and employees of Somerstein Caterers of Lawrence, New York, apparently a kosher caterer in the Long Island area. The indictment charges the defendants, with, among other crimes, conspiring to defraud benefit funds of Local 100 of the Hotel Employees and Restaurant Employees International Union. Jury selection was conducted on March 24 and March 25, 1997 by United States Magistrate Judge E. Thomas Boyle. At the close of voir dire, the prosecution exercised six of its nine peremptory challenges to excuse the following potential jurors from the panel: Jan Ellen Grossman, James Lefkowitz, Dale Holtzman, Irwin Bedell, Eugene Meyer, and Vanessa Mary Longo. At that time, defense counsel objected to these challenges on the ground that they constitute a violation of the Batson rule because they are based on membership in or affiliation with a given religion, in this case Judaism.

 After hearing the Government's response, Judge Boyle overruled the objections. A "notice of appeal" was then filed in this Court. The Court now conducts a de novo review.

 II. Discussion

 In Batson, the Supreme Court recognized that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race. . . ." Batson, 476 U.S. at 89. In J.E.B. v. Alabama, 511 U.S. 127, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994), the Supreme Court extended the rule of Batson to prevent the use of peremptory challenges on the basis of gender, reasoning that "striking individual jurors on the assumption that they hold particular views simply because of the gender is 'practically a brand upon them, affixed by the law, an assertion of their inferiority.'" Id. at 142, citing, Strauder v. West Virginia, 100 U.S. 303, 308, 25 L. Ed. 664 (1880). In reaching its conclusion, the Court focused on the fact that "the message it [the use of peremptory challenges to strike women] sends to all those in the courtroom, and all those who may later learn of the discriminatory act, is that certain individuals, for no reason other than gender, are presumed unqualified by state actors to decide important questions upon which reasonable persons could disagree." 511 U.S. at 142.

 In State v, Davis, 504 N.W.2d 767, 771 (Minn. 1993), cert. denied sub. nom, Davis v. Minnesota, 511 U.S. 1115, 128 L. Ed. 2d 679, 114 S. Ct. 2120 (1994), the Minnesota Supreme Court upheld a conviction where the prosecutor admittedly applied a peremptory challenge to a Jehovah's Witness explaining that "in my experience Jahovah Witness [sic] are reluctant to exercise authority over their fellow human beings in this Court House." 504 N.W.2d at 768. In affirming the conviction, the court reasoned that Batson should not be extended beyond race based challenges and that applying Batson to religion would essentially open a pandora's box.

 In denying certiorari, Justice Ginsburg wrote a concurring opinion noting two "key" observations: (1) that religious affiliation is not as self evident as race or gender; and (2) ordinarily, questions into religious affiliation are irrelevant, prejudicial and improper. Davis v. Minnesota, 511 U.S. 1115, 128 L. Ed. 2d 679, 114 S. Ct. 2120, 2120 (1994).

 In the Court's view, the dissenting opinion in Davis best represents the state of the Batson doctrine at the present time. In other words, the same "message" that the Supreme Court hoped to avoid with its decision to apply Batson to gender based peremptory strikes, namely that women would be unfit "to decide important questions upon which reasonable persons could disagree," is no less offensive to the notions of equal protection when applied to other classes which receive heightened scrutiny, which would presumably include religious denominations. Id.; see Benjamin Hoorn Barton, Note, Religion-Based Peremptory Challenges after Batson v. Kentucky and J.E.B. v. Alabama: An Equal Protection and First Amendment Analysis, 94 Mich. L. Rev. 191 (1995) (arguing that "religion-based peremptory challenges are unconstitutional"). In adopting the reasoning of the dissent in Davis, the Court acknowledges the insightful observations of Justice Ginsburg, that religious affiliation is not as self evident as race or gender, which will inevitably lead to factual disputes as to whether the particular juror is of the Jewish faith, as well as possible factual hearings on the issue. Nevertheless, based on a logical extension of the precedents cited, the Court concludes that Batson should apply.

 However, even if the Court were to conclude that religion was not covered by the Batson rule, there would be an alternative argument for protecting the use of peremptory challenges against Jewish panel members. In Saint Francis College v. Al-Khazraji, 481 U.S. 604, 95 L. Ed. 2d 582, 107 S. Ct. 2022 (1987), the Supreme Court, in considering the definition of the term "race" as that term is applied in a Section 1981 analysis, see 42 U.S.C. § 1981, recognized that the statute contemplated protection for those discriminated against on the basis of "their ancestry or ethnic characteristics." Id. at 613. The legislative history of section 1981 reflects this conclusion and refers to the "Jews" as a separate race. Id. at 612. In Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 95 L. Ed. 2d 594, 107 S. Ct. 2019 (1987), the Supreme Court recognized that Jews could make out a claim for racial discrimination under 42 U.S.C. § 1982. Id. at 617; In Jews for Jesus, Inc. v. Jewish Community Relations Council of N.Y., Inc., 968 F.2d 286, 291 (2d Cir. 1992) the Second Circuit reached the same conclusion with respect to civil rights conspiracy claims brought pursuant to 42 U.S.C. § 1985(3). Id. at 290; cf. United States v. Gelb, 881 F.2d 1155, 1161 (2d Cir.), cert. denied, 493 U.S. 994, 107 L. Ed. 2d 541, 110 S. Ct. 544 (1989) (recognizing that a Jewish defendant could mount a Sixth Amendment challenge to a Long Island jury pool which contained an underrepresentation of Jews but denying the challenge on the ground that a lack of Jewish surnames does not necessarily connote an absence of Jewish panel members). Based on these cases, which treat Jews as a race for the purposes of civil rights claims, the Court holds that whether persons of the Jewish faith are considered a religion or a race or both, in the context of this case, the Batson rule does apply.

 Having determined that Batson applies to religious classifications, such as persons of the Jewish faith, the Court must add some refinements in this type of challenge. First, before a Court applies Batson to a challenge on religious grounds, there must be a determination as to whether the religion of the juror is relevant to the issues of the case. Generally, the religion of a juror is not relevant to the jury selection process, in the legal sense. Accordingly, the preference of attorneys for one religious group over another should not be the basis for a Batson challenge. In a criminal case, only if the religion of the jurors is directly relevant to the crimes at issue, can such a challenge be proper. In this case, the defendants are kosher caterers specializing in making kosher affairs, and they are accused of criminal conduct in connection with an alleged scheme to defraud their employees' benefit funds. Based on ...

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