A federal Magistrate Judge sitting in New York has ruled that potential jurors cannot be excluded from a jury based on nationality. The rule against discrimination stems from Batson v. Kentucky, where race had been used by attorneys for peremptory challenges. The Batson rule also been extended to other minorities and to gender based discrimination, and extends also into civil cases.
From today’s New York Times (sub. req.):
The judge, in a ruling last week, opened a door to lawyers defending a West Indian man who argued that he had been denied justice because all five potential jurors who were West Indian were improperly excluded by the prosecution. The Bronx jury that convicted the man, Mark Watson, of rape, sodomy and burglary included blacks, but all of them were American born.
The judge, James C. Francis IV, ordered a hearing to determine “whether the state can offer a nondiscriminatory explanation for its peremptory challenges and whether Mr. Watson can carry his burden of establishing discriminatory intent.” If a separate hearing determines that jury selection was discriminatory, Mr. Watson, who was born in Jamaica and is serving 37 1/2 to 75 years in prison, could receive a new trial.
“Mr. Watson established that the prosecutor had struck every one of the five West Indian prospective jurors, a showing that was plainly sufficient to support an inference of intentional discrimination,” Judge Francis wrote.
“If striking five out of five West Indian jurors is insufficient to raise an inference of discrimination, it is difficult to imagine what sort of pattern of strikes might do so,” he said.
Personally, when I pick juries I always have a reason when exercising a challenge, and I think trial lawyers make a mistake when they bounce potential jurors based solely on discriminatory factors. While on the one hand a lawyer wants the jury to look like his own client, on the other hand, those from the same racial/ethnic/national/gender group may also be the harshest critic of their own. Picking a jury takes a lot more subtlety than simply looking at the superficial features of your fellow man.