FL. Ct. Rules: No Clergy on Jury

Clergy May Be Kept Off Juries, Court Rules

A Florida appeals court has ruled that clergy members may be excluded from juries because they tend to be too sympathetic to criminal defendants, a decision that legal experts say raises questions about the role of religious belief in the justice system.

 The ruling last month also calls into question whether the constitutional prohibition on excluding jurors on the basis of race is too easily skirted by reliance on other rationales.

 The case arose in March 2001 when a prosecutor in West Palm Beach, Fla., used a peremptory challenge - one for which a reason generally need not be given - to exclude a black pastor as a juror in a battery case.

 The United States Supreme Court has held that race may not be relied on in selecting a jury and that lawyers must offer another rationale if asked to justify decisions. The prosecutor, Alan Johnson, did not have an easy time articulating an acceptable rationale when the defendant's lawyer suggested his decision was motivated by the pastor's race.

 The pastor, the Rev. Robert Cook of the Joy of Faith Christian Center in West Palm Beach, had said his religious beliefs would not prevent him from sitting in judgment of others. "I'm fair and impartial," Mr. Cook said at the time.

 "I accept presumed innocence and also the burden of proof beyond a reasonable doubt without any personal feelings about it."

 The judge, Howard C. Berman, prompted Mr. Johnson. "We do know that pastors for the most part and ministers and rabbis have a tendency to be sympathetic," he said. Mr. Johnson adopted the rationale, and Judge Berman excluded Mr. Cook.

 The appeals court denied an appeal by the defendant, Jason Rodriguez, who argued that his conviction should be overturned because excluding Mr. Cook was improper. The court echoed Judge Berman, saying that "religion- based professionals, such as pastors, ministers and rabbis, tend to be more sympathetic."

 Mr. Cook, who was not told at the time why he was excused, was surprised to hear the reason in a recent interview. "That doesn't make any sense," he said. "I'm harder than most." He added: "Look, a criminal is a criminal. I'm not overly hard or overly easy."

 Bruce Rogow, a law professor at Nova Southeastern University in Fort Lauderdale, Fla., said the case illustrated the ease with which the rule against excluding jurors on the basis of race can be skirted. "If you can grab onto some neutral-sounding reason and you can say it with a straight enough face and some gravitas, it will be accepted," Professor Rogow said. "But it's not white ministers who are being struck. It's black ministers."

 Melynda L. Melear, who represented the prosecution in the appeals court, said the ruling was narrow and reasonable.

 "It's not unusual that prosecutors or defense counsel have ideas in their heads about people's occupations," Ms. Melear said. "So long as it is genuine and somewhat reasonable, it will be upheld."

 Court decisions on whether excluding jurors on the basis of their religion is constitutional are mixed, but courts tend to accept challenges to members of the clergy so long as they are framed as a concern about members of all faiths.

 The United States Court of Appeals for the Ninth Circuit, in San Francisco, for instance, held that a prosecutor "expressed a legitimate concern that ministers are uniquely forgiving," and the United States Court of Appeals for the Fifth Circuit in New Orleans, accepted the rationale that a minister could be excluded because "perhaps she would have a higher threshold of reasonable doubt."

 Yale Kamisar, an expert in criminal procedure at the University of Michigan Law School, said the reason offered by the prosecutor in West Palm Beach was problematic.

 "It's a plausible story except it runs into another problem, which is stereotyping ministers," Mr. Kamisar said. He noted that the Florida Supreme Court rejected the argument that teachers may be excluded from juries on the ground that they tend to be liberal.

 "You just can't infer political factors based on someone's occupation," Professor Kamisar said.

 Professor Rogow said the ruling was misguided both as a matter of theory and in its understanding of the uniformity of views held by members of the clergy.

 "There are plenty of ministers who have hearts of stone," he said. "If you had a white, Christian, fundamentalist minister, I don't think he would have been excluded."

 Paul Petillo, Mr. Rodriguez's lawyer, said his client did not plan to appeal.