TABLE OF CONTENTS

TABLE OF AUTHORITIES..................................................................................................................ii

ISSUE PRESENTED.............................................................................................................................1

JURISDICTIONAL STATEMENT...........................................................................................................2

STATEMENT OF FACTS......................................................................................................................2

SUMMARY OF ARGUMENT................................................................................................................3

STANDARD OF REVIEW.....................................................................................................................4

ARGUMENT.......................................................................................................................................5

I. THE STATE’S USE OF A PEREMPTORY JUROR CHALLENGE

BASED PURELY ON A JUROR’S RACE OR PRESUMED RELIGIOUS
AFFILIATION VIOLATED MR. MANION’S CONSTITUTIONAL
GUARANTEE OF A FAIR TRIAL..................................................................................4

A. The State’s Justification For Challenging Juror 41 Was Based

On His Race And Therefore Prohibited Under Batson......................................5

B. Even If The State’s Peremptory Challenge Of Juror 41 Was Not

Based On His Race, Its Challenge Of A Juror On The Basis Of
Religion ─ Or Presumed Religious Affiliation ─ Is Inconsistent
With The Equal Protection Clause And The Reasoning Of Batson
And J.E.B...........................................................................................................8

1. State Classifications Based On Religious Affiliation

Require Strict Scrutiny Analysis Which Is Directly
Applicable To Peremptory Juror Challenges Because
Batson And J.E.B. Have Extended Equal Or Lesser
Standards Of Scrutiny............................................................................8

2. Numerous State Supreme Courts Have Found Peremptory

Challenges Based On Religious Affiliation Unconstitutional
And This Trend Is The Emerging Consensus In Courts
Across The United States.....................................................................12

CONCLUSION..................................................................................................................................15
 TABLE OF AUTHORITIES

Cases Page
Adarand Constructors v. Pena,
515 U.S. 200 (1995)...................................................................................................................8, 9

Batson v. Kentucky,
476 U.S. 79 (1986) ..............................................................................................................passim

Commonwealth v. Soares,
387 N.E.2d 499 (Mass. 1979)......................................................................................................12

Craig v. Boren,
429 U.S. 190 (1976)...................................................................................................................8, 9

Fields v. People,
732 P.2d 1145 (Colo. 1987).........................................................................................................12

Highler v. State,
854 N.E.2d 823 (Ind. 2006).........................................................................................................12

J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127 (1994).............................................................................................................passim

Maheffey v. Page,
162 F.3d 481 (7th Cir. 1998).........................................................................................................4

Martin v. Texas,
200 U.S. 316 (1906).......................................................................................................................5

Miller-El v. Dretke,
545 U.S. 231 (2005).......................................................................................................................7

Nelloms v. United States,

399 F.2d 295 (5th Cir. 1968).........................................................................................................5

People v. Langston,
641 N.Y.S.2d 513 (Sup. Ct. 1996)...............................................................................................12

People v. Wheeler,
583 P.2d 748 (Cal. 1978).............................................................................................................12

State v. Davis,
504 N.W.2d 767 (Minn. 1993); cert. denied 511 U.S. 1115 (1994)......................................14, 15

ii
State v. Eason,
445 S.E.2d 917 (N.C. 1994).........................................................................................................12

State v. Fuller,
862 A.2d 1130 (N.J. 2004).....................................................................................................12, 13

State v. Gilmore,
511 A.2d 1150 (N.J. 1986)...........................................................................................................12

State v. Hodge,
726 A.2d 531 (Conn. 1999).............................................................................................12, 13, 14

State v. Levinson,
795 P.2d 845 (Haw. 1990)...........................................................................................................12

State v. Purcell,
18 P.3d 113 (Ariz.App. Div. 2001)..............................................................................................12

Thorson v. State,
721 So. 2d 590 (Miss. 1998)........................................................................................................12

United States v. Brown,

352 F.3d 654 (2d Cir. 2003).........................................................................................................12

United States v. Hinton,

94 F.3d 396 (7th Cir. 1996).......................................................................................................7, 8

United States v. Martinez,

No. 08-5071, 2010 WL 3606170 (2d Cir. Sept. 17, 2010)............................................................4

United States v. Stafford,

136 F.3d 1109 (7th Cir. 1998).....................................................................................................12

STATUTES

21 Col. Crim. Code § 1001(b).........................................................................................................2

21 Col. Crim. Code § 1102..............................................................................................................2

22 Col. Crim. Code § 12..................................................................................................................2

22 Col. Crim. Code § 81..................................................................................................................2

iii
iv
 No. 10-2675

IN THE COURT OF APPEALS STATE OF COLUMBUS

FREDERICK MANION
Defendant-Appellant,
v.

STATE
Plaintiff-Appellee.

ON APPEAL FROM THE DISTRICT COURT FOR THE COUNTY OF

FOX STATE OF COLUMBUS

BRIEF FOR APPELLANT

ISSUE PRESENTED

I. WHETHER THE STATE’S USE OF A PEREMPTORY JUROR CHALLENGE

BASED PURELY ON A JUROR’S RACE OR PRESUMED RELIGIOUS
AFFILIATION VIOLATED MR. MANION’S CONSTITUTIONAL GUARANTEE
OF A FAIR TRIAL.

1
 JURISDICTIONAL STATEMENT

This action alleges violations of 22 Col. Crim. Code § 12 and 22 Col. Crim. Code § 81.

The District Court has jurisdiction pursuant to 21 Col. Crim. Code § 1001(b). The District Court

entered a final judgment on July 27, 2010, and Frederick Manion filed a timely notice of appeal

on August 3, 2010. This Court has jurisdiction pursuant to 21 Col. Crim. Code § 1102 because

this matter is a final judgment in a criminal appeal from a District Court.

STATEMENT OF FACTS

Frederick Manion is a dedicated father of two young sons. Mr. Manion is an honorably

discharged war veteran who volunteered to join the United States Military during a time of war

and consequently saw combat action in both Iraq and Afghanistan. R. at 32. Mr. Manion is also

an African American.

Upon returning home from his second tour of combat duty in Afghanistan, Mr. Manion

found that the death of his grandmother and serious health issues plaguing his mother had forced

his sons into the foster care system. R. at 32. The stress of these family and personal

complications made Mr. Manion’s return home from the war zone and transition back to civilian

life a highly difficult one. R. at 32.

On August 4, 2009, a grand jury indicted Mr. Manion and another defendant for robbery

and attempted armed carjacking. R. at 2. During voir dire, the State used five of its six

peremptory strikes to remove African Americans from the jury pool. R. at 5. The State

exercised one of these strikes to remove Juror 41. R. at 5. Initially, the State claimed to base its

challenge of this juror on a “gut feeling” about what the prosecutor characterized as Juror 41’s

unresponsive demeanor. R. at 7. But the State then elaborated on its challenge of Juror 41, and

noted that its strike of the juror was based on his appearance and what it somehow concluded

2
were the juror’s religious affiliations: “[h]e dressed like a lot of young men I see on the street…

close cropped hair, bow tie, glasses.” R. at 7-8. Elaborating further, the State next associated

Juror 41 with the Muslim religion and the Nation of Islam, a conclusion the State claimed to

reach on the basis of the juror’s appearance and even what he appeared to be reading. R. at 7.

Without asking Juror 41 a single question to ascertain his true religious affiliation or beliefs, the

State struck him from the jury. R. at 7-8.

In contrast to the State’s strike of Juror 41 for his conservative attire, the State also struck

Juror 14 – also an African American man – for his casual attire. R. at 7. With its peremptory

strikes of both Jurors 41 and 14, the State is on the Record for striking African Americans both

in professional and casual attire.

Trial counsel for Mr. Manion raised the State’s pattern of strikes before the trial court

judge, who decided to wait until the conclusion of Mr. Manion’s trial to rule on whether the

State’s strikes were invalid. R. at 13-14. After the jury returned its verdict, Mr. Manion filed a

timely motion for a new trial, urging that the District Court grant a new trial because of racial

and religious discrimination that violated Mr. Manion’s right to a fairly impaneled jury. R. at 22.

The District Court ultimately denied the motion, sentencing Mr. Manion to two ten-year

sentences to be served concurrently. R. at 25; 28; 33. Mr. Manion then obtained appellate

counsel and filed a timely notice of appeal on August 3, 2010. R. at 35.

SUMMARY OF ARGUMENT

Because the State exercised baseless peremptory challenges, Mr. Manion never received

an impartial and untainted jury of his peers as guaranteed by the Sixth Amendment of the United

States Constitution. The State’s challenges, aimed at eliminating African Americans from his

jury pool, were illegal for two reasons. First, the State struck Juror 41 because he was an African

3
American. Second, even if the State did not strike Juror 41 on purely racial grounds, its strike of

Juror 41 on his suspected religious affiliation is equally unconstitutional. The State’s support of

these discriminatory peremptory challenges on the basis of Juror 41’s race or suspected religious

affiliations are the very types of strikes that United States Supreme Court has outlawed on the

basis of the Equal Protection Clause. Accordingly, this Court should reverse the District Court’s

decision and remand the case for retrial before a fairly impaneled jury.

STANDARD OF REVIEW

The District Court’s denial of Mr. Manion’s request for a new trial is a mixed question of

law and fact that is reviewable by this Court de novo. Maheffey v. Page, 162 F.3d 481, 484 (7th

Cir. 1998) (holding that “the preliminary question of whether a prima facie case has been shown

presents a mixed question of law and fact…which the appellate courts should review de novo.”).

Because this inquiry is in many cases more often a “question of law than of fact,” this Court

should review the District Court’s ruling de novo. United States v. Martinez, No. 08-5071, 2010

WL 3606170, at *7 (2d Cir. Sept. 17, 2010) (finding cases of juror discrimination to be more

often questions of law than of fact).

ARGUMENT

I. THE STATE’S USE OF A PEREMPTORY JUROR CHALLENGE BASED

PURELY ON A JUROR’S RACE OR PRESUMED RELIGIOUS AFFILIATION
VIOLATED MR. MANION’S CONSTITUTIONAL GUARANTEE OF A FAIR
TRIAL.

Because the State struck Juror 41 based on utterly groundless racial and religious

stereotypes, it flouted the Supreme Court’s clear directives in Batson and J.E.B., thereby denying

Mr. Manion the fair trial guaranteed to him by the Sixth Amendment of the United States

Constitution. Two reasons support the reversal of the District Court’s ruling. First, the State’s

4
exclusion of Juror 41 based on his race is a clear Batson violation. Second, even if the State did

not strike Juror 41 based entirely upon on his race but rather based on what it groundlessly

believed to be his religious affiliation, this kind of strike is the very sort of discrimination that the

Equal Protection Clause prohibits. Accordingly, this Court should reverse the District Court’s

decision and remand the case for retrial before a jury untainted by State-perpetuated

discrimination.

A. The State’s Justification For Challenging Juror 41 Was Based

On His Race And Therefore Prohibited Under Batson.

The State denied Mr. Manion the guarantee of a fairly impaneled jury because the State

used its peremptory challenges to purposefully remove African Americans from his jury. The

State attempted to suggest its strike of Juror 41 was on the basis of his physical appearance, attire

and an utterly unsubstantiated claim that he was affiliated with the Nation of Islam. Yet implicit

in the State’s strike of Juror 41 is the fact that the group it associates Juror 41 with is almost

entirely comprised of African Americans like Juror 41.1 This is indeed the very kind of

discrimination that the Supreme Court has outlawed for more than a century. See Martin v.

Texas, 200 U.S. 316, 321 (1906) (holding that a defendant has a right to a jury selected by non-

discriminatory means).

In Batson, an African American defendant appealed his conviction on the grounds that

the prosecutor had impermissibly used its peremptory challenges to purposely remove African

Americans from the jury pool and compose a jury of only caucasians. Batson v. Kentucky, 476

U.S. 79, 83 (1986). The Court held that such challenges offend the Equal Protection Clause and

1
See, e.g., Nelloms v. United States, 399 F.2d 295, 296 (5th Cir. 1968) (describing the
composition of the Nation of Islam as a “religious sect commonly known as the Black
Muslims.”).

5
a defendant’s right to be tried by members of a jury selected “pursuant to nondiscriminatory

criteria.” Id. at 85-86.

The Batson Court’s reasoning is directly applicable to Mr. Manion’s case. That Court

reasoned that race-based discrimination during voir dire was the kind of violation that denies a

defendant the very protection that a jury trial is “intended to serve.” Id. at 86. Although Mr.

Manion expected to receive that protection during his jury trial, the State carefully crafted a plan

to remove African Americans from Mr. Manion’s jury by using five of its six peremptory strikes

to remove African Americans from the jury, including Juror 41. The State’s exercise of the same

kind of clear racial prejudice, which the Batson Court expressly outlawed, can not be seen as

anything else but racially motivated and as such warrants a reversal on these grounds alone.

In addition, the Record provides ample evidence of the State’s racially motivated

challenge of Juror 41. In an effort to steer attention away from the prosecutor’s race-based strike

of Juror 41, the State now attempts to focus this Court’s attention on post-hoc ploys as to why

Juror 41 was excluded from service, attempting to shift the focus from what were clearly

prohibited Batson strikes. The State quashed any chance it had of offering race-neutral reasons

for challenging Juror 41 by its precise description of his appearance, which it immediately linked

to an organization predominantly composed of African Americans. The prosecutor carefully

described Juror 41’s appearance as “[c]lose cropped hair, bow tie, glasses…dressed like a lot of

young men I see on the street connected with Louis Farrakhan.” The State carefully analyzed

Juror 41 and then unfairly categorized him. If a juror matching this exact description with white

skin had been in the jury pool, the State would not have struck this juror from service.

Yet the State did not stop at just challenging professionally dressed African Americans.

In addition to striking an African American juror in professional attire (Juror 41), the State also

6
struck an African American juror based on his casual attire (Juror 14). R. at 7. The common

denominator between these two challenges is race. The State’s challenge of Jurors 14 and 41 on

the basis of their race is the very kind of racially motivated challenge that Batson and its progeny

forbid.

Any claim by the State that these strikes were based solely on the jurors’ attire or

appearance – and not race – holds no water under any reasonable analysis. The spectrum of the

State’s “attire” based challenges is very wide: it struck African Americans from Mr. Manion’s

jury that were both professionally and leisurely dressed. R. at 7. Additionally, the very number

of peremptory challenges the State used to strike African Americans – 83.3% – can not be

written off as a coincidence. See Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005). The

Supreme Court noted in Miller-El that Texas’ use of peremptories that removed 91% of African

Americans from the venire was “remarkable” and unlikely to be “happenstance.” Id. Similarly

in this case, both the high frequency and wide ranging spectrum upon which the State challenged

African Americans is no coincidence.

Finally, any attempted reliance by the State on cases such as Hinton is entirely misplaced.

Although the court in Hinton reached the conclusion that an African American wearing a

Malcolm X hat could be struck on the basis of attire (not on his race), the court reached that

conclusion after the prosecutor stopped well short of establishing a connection between the

juror’s attire and his race or anti-government views. United States v. Hinton, 94 F.3d 396, 397

(7th Cir. 1996) (“[h]e came into court wearing a Malcolm X hat…I can elaborate if you want me

to.”). But importantly in Mr. Manion’s case, the prosecutor did indeed establish a connection

between Juror 41’s attire and his race. The State’s motivations are clear because of the

attenuated connection it drew between Juror 41’s professional appearance and his involvement

7
with a predominantly African American organization. Instead of connecting Juror 41’s

appearance to that of a lawyer or businessman, the State connected Juror 41 to the predominantly

African American Nation of Islam. Crucially, the prosecutor avoided this descriptive elaboration

and connection in Hinton, rendering any reliance upon this case by the State inapplicable in Mr.

Manion’s case. 94 F.3d at 396 (failing to elaborate on reasons for strike during voir dire

discussion with Court).

B. Even If The State’s Peremptory Challenge of Juror 41 Was Not Based On

His Race, Its Challenge Of A Juror On The Basis Of Religion ─ Or
Presumed Religious Affiliation ─ Is Inconsistent With The Equal Protection
Clause And The Reasoning Of Batson And J.E.B.

The United States Supreme Court has clearly outlawed peremptory challenges against

prospective jurors on the basis of either their race or gender. The Court’s application of Batson’s

rationale to J.E.B. established that “gender, like race, is an unconstitutional proxy for juror

competence and impartiality.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 (1994).

Likewise, in Mr. Manion’s case, religious affiliation can not be a similar proxy by which the

continuation of peremptory challenge discrimination can still occur. Therefore, this Court should

apply the rationale of Batson and J.E.B. to reverse the District Court and remand the case for

retrial before a jury empanelled without the taint of government-approved discrimination.

1. State Classifications Based On Religious Affiliation Require

Strict Scrutiny Analysis Which Is Directly Applicable To
Peremptory Juror Challenges Because Batson And J.E.B.
Have Extended Equal Or Lesser Standards Of Scrutiny.

As a matter of constitutional law, the Supreme Court has held that in matters dealing with

racial discrimination, it will apply strict scrutiny analysis to any such issues. Adarand

Constructors v. Pena, 515 U.S. 200, 227 (1995). Similarly, the Supreme Court has held that in

matters dealing with gender discrimination, it will apply the reduced standard of intermediate

8
scrutiny to such issues. Craig v. Boren, 429 U.S. 190, 197-98 (1976). Because both the level of

scrutiny and reasoning of the Supreme Court’s decisions in Batson and J.E.B. are directly

applicable extensions to challenging jurors on the basis of religion, this Court should reverse the

District Court and remand the case so that Mr. Manion can finally receive a fair trial.

As the Court held in Pena, any form of government perpetrated discrimination on the

basis of race must serve a compelling governmental interest and be narrowly tailored to serve

that interest. Pena, 515 U.S. 200 at 227. Surrounding the Court’s decision in Batson was this

background that such race-based discrimination can not under any reasonable analysis serve a

compelling governmental interest with respect to peremptory challenges. Batson, 476 U.S. 79 at

87 (noting purposeless of racial discrimination and the effects it has on the defendant, juror and

indeed entire community).

Similarly, the Court has applied a lower standard of intermediate level scrutiny to issues

dealing with gender discrimination, requiring that such discrimination “serve important

governmental objectives and must be substantially related to the achievement of those

objectives.” Craig, 429 U.S. 190 at 197-98. In J.E.B. the Court underlined the importance of

applying intermediate scrutiny to gender issues because of the “real danger” that certain

governmental-approved policies are “archaic and overbroad generalizations about gender,” and

serve no governmental objective. J.E.B., 511 U.S. 127 at 135.

The Court’s recognition of the inherent dangers of both racial and gender discrimination

is directly applicable to peremptory challenges on the basis of religion. The logic behind the

Court’s reasoning applies in full force to religion because such discrimination certainly does not

serve any sort of compelling governmental purpose under strict scrutiny or governmental

objective under the lesser standard of intermediate scrutiny.

9
 In Mr. Manion’s case, the State has seriously violated the rights of both Juror 41 and Mr.

Manion by striking Juror 41 on what the State perceives to be his religious affiliation. Without

the application of the Court’s previous jurisprudence to the blatant religious discrimination that

occurred in this case, remedies for Mr. Manion or Juror 41 do not exist. Surely dismissing Juror

41 because of the State’s utterly groundless presumption that Juror 41 was affiliated with the

Nation of Islam does not meet any compelling governmental purpose or objective. Therefore

this Court should outlaw such religious-based peremptory challenges in the State of Columbus.

Additionally, in reaching its decisions in both Batson and J.E.B., the Supreme Court dealt

directly with the issue of what role historical prejudice should play in the analysis of preventing

juror discrimination based on race or gender. Batson, 476 U.S. 79 at 85-87; J.E.B., 511 U.S. 127

at 135. The Court recognized that although the degree of past discrimination on the basis of race

and gender may have taken different forms, “the experiences of racial minorities and

women…‘overpower those differences.’” Id.

Although religious intolerance has varied in some ways from racial or gender

discrimination, the overall experience of discrimination perpetrated upon religious minorities

trumps any such differences. It is not an exact measurement of past religious discrimination that

should be the measure by which such discrimination is allowed or forbidden. Rather the correct

gauge is the overall experience of those discriminated against because of their religious

affiliation. Additionally, the correct measure of one’s religious affiliation can not be gauged by

any one stereotype. Members of religious groups vary widely in the practice and adherence to

affiliation with that religion. Challenging a juror during voir dire on what is necessarily a

stereotypical estimate of the juror’s religious affiliation is highly inaccurate and in no way a true

gauge of that juror’s actual religious affiliation.

10
 This line of reasoning is precisely on point in Mr. Manion’s case. The State’s

discriminatory strike of Juror 41 on the basis of his perceived religious affiliation is an eerie

reminder of the ugly experience of religious minorities. Without anything more than a tenuous

set of assumptions and stereotypes, the State struck Juror 41 because of what it suspected to be

his religious affiliation. This kind of a strike can not be the basis of a state’s pursuit of legitimate

objectives. Just as discrimination against jurors based on gender did not serve a state’s

legitimate interest in J.E.B., nor does the discrimination on the basis of religious affiliation serve

any legitimate interest for the State of Columbus. Any quibbling by the State about the historical

inequity of religious discrimination as compared with racial or gender discrimination is moot

because at the end of the day such discrimination does not serve any true governmental interest

or objective.

Finally, the State’s reliance upon any such historical inequities between racial, gender

and religious discrimination as the counterargument to applying the rationale of Batson and

J.E.B. to Mr. Manion’s case is entirely without merit. The key to disproving the State’s assertion

in this case lies within the reasoning of the Court in J.E.B. In J.E.B. the Court concluded that an

exact measurement of the historical discrimination against a particular group is in fact

unnecessary. J.E.B., 511 U.S. 127 at 136. Instead, the Court reasoned that the real focus should

be on “whether discrimination on the basis of gender in jury selection substantially furthers the

State’s legitimate interest of achieving a fair and impartial trial.” Id. at 136-37. Because such

religious discrimination does not and can not serve the interest of the people or this State, this

Court should reverse the District Court and remand the case for Mr. Manion’s retrial.

11
 2. Numerous State Supreme Courts Have Found Peremptory Challenges Based
On Religious Affiliation Unconstitutional And This Trend Is
The Emerging Consensus In Courts Across The United States.

Extending Batson or J.E.B. protections to peremptory strikes based on religious

affiliation is not only the most prudent course of action to further eradicating discrimination, but

is in fact the approach that multiple other courts around the country have adopted. At least

eleven States have found that striking a juror based on his or her perceived religious affiliation is

a violation of the state or federal constitutions.2 Because many states have wrestled with this

issue and indeed concluded that such discrimination can not be state-sponsored, this Court

should outlaw such discrimination in this state once and for all by reversing the District Court’s

decision.

In Fuller, the Court refused to “turn a blind eye to the discriminatory impact of

peremptory challenges exercised on religious grounds.” State v. Fuller, 862 A.2d 1130, 1147

(N.J. 2004). The defendant in Fuller appealed a conviction on the grounds that the prosecutor

unfairly impaneled a jury by removing two jurors on the basis of their religion. Id. at 1132. The

Court reasoned that the equal protection analysis in both Batson and J.E.B. (in conjunction with

its own case law), warranted prohibiting peremptory challenges on the basis of religious

affiliation or belief. Id. at 1143; see also State v. Gilmore, 511 A.2d 1150, 1158 (N.J. 1986)

(prohibiting discrimination against juror on the basis of “religious principles”). The Court, citing
2
See State v. Fuller, 862 A.2d 1130 (N.J. 2004) (New Jersey); State v. Hodge, 726 A.2d 531
(Conn. 1999) (Connecticut); People v. Wheeler, 583 P.2d 748 (Cal. 1978) (California); Fields v.
People, 732 P.2d 1145 (Colo. 1987) (Colorado); State v. Levinson, 795 P.2d 845 (Haw. 1990)
(Hawaii); Commonwealth v. Soares, 387 N.E.2d 499 (Mass. 1979) (Massachusetts); People v.
Langston, 641 N.Y.S.2d 513 (Sup. Ct. 1996) (New York); State v. Eason, 445 S.E.2d 917 (N.C.
1994) (North Carolina); Thorson v. State, 721 So. 2d 590 (Miss. 1998) (Mississippi); Highler v.
State, 854 N.E.2d 823 (Ind. 2006) (Indiana); State v. Purcell, 18 P.3d 113 (Ariz.App. Div. 2001)
(Arizona). Two federal circuits have also found such strikes to be improper. See United States
v. Brown, 352 F.3d 654, 659 (2d Cir. 2003); United States v. Stafford, 136 F.3d 1109, 1114 (7th
Cir. 1998) (suggesting strikes based on religion would be improper and perhaps
unconstitutional).

12
to J.E.B., found that a peremptory challenge on this basis was the kind of stereotypical

discrimination that creates a policy of unlawful “blanket exclusion.” Fuller, 862 A.2d 1130 at

1147.

Additionally, the voir dire methodology of the prosecutor in Fuller is strikingly similar to

the prosecutor in Mr. Manion’s case. The prosecutor in Fuller used four of his first five

peremptory challenges to remove African Americans. Id. at 1133. Counsel for Mr. Fuller

objected to the State’s racially motivated strikes, at which time the prosecutor backed its strikes

by claiming that the removal of two jurors was actually based on their religions. Id. When

pressed for a race-neutral reason for its strikes, New Jersey backpedaled to religion, just as the

State in Mr. Manion’s case has attempted to do. Compare Fuller, 862 A.2d 1130 at 1133 with R.

at 7 (citing strike of Juror 41 first on the basis of his appearance and then on his perceived

affiliation with the Nation of Islam). The Fuller Court refused to allow religious-based

discrimination to stand as a backup to the prosecutor’s failed attempt at a race-neutral reason for

its challenge. Because the facts and rationale of the Fuller Court are so similar and applicable to

Mr. Manion’s case, this Court should apply the same sound reasoning to conclude that such

peremptory challenges on the basis of religious affiliation can not stand in this State.

Other state courts have also outlawed peremptory challenges on the basis of religious

affiliation. In Hodge, the defendant appealed a conviction because of racial and religious

discrimination in the empanelling of his jury. State v. Hodge, 726 A.2d 531, 536 (Conn. 1999).

Although upholding the conviction on other grounds3, the Court importantly reached the

conclusion that striking a juror on the basis of religious affiliation is against the Equal Protection

Clause and therefore unconstitutional. Id. at 550-553.

3
The Hodge Court upheld the conviction because it found that the prosecutor in that case, unlike
the prosecutor in Mr. Manion’s case, had offered valid race and religion-neutral explanations for
its strikes. Hodge, 726 A.2d 531 at 543-44.

13
 The Court in Hodge reasoned that if a classification receiving a lesser level of scrutiny

(such as gender) could be extended to cover intentional discrimination, surely a classification that

receives the highest standard of scrutiny should also be afforded this same extension. Id. at 550-

53 (finding no basis “for confining the holding in J.E.B. to the context of sex,” a classification

subject to a lower standard of scrutiny).

Under this analysis, a peremptory challenge on the basis of religious affiliation should

only be allowed if it serves a “narrowly tailored means to serve the compelling state interest of

ensuring a fair and impartial jury.” Id. at 553; see also State v. Davis, 511 U.S. 1115 (O’Connor,

J., dissenting in denial of certiorari) (discussing impact of J.E.B. on equal protection analysis on

classifications such as religion). Unless this Court is willing to condone the State’s position that

striking one of its jurors from service because of his or her religious affiliation serves a

compelling state interest, it should follow the emerging consensus of state supreme courts ─ as

well as the rationale of the United States Supreme Court ─ by reversing the District Court’s

decision.

Finally, the State’s reliance upon Davis or the privacy interests of jurors is wholly

misplaced. State v. Davis, 504 N.W.2d 767 (Minn. 1993). In addition to the striking factual

differences from Mr. Manion’s case, the most prominent flaw of the Davis decision was its

timing. Davis was decided in August of 1993, approximately 8 months before the United States

Supreme Court issued its opinion in J.E.B. In reaching its decision the Minnesota Supreme Court

did not have the Court’s extension of Batson via J.E.B. at its disposal, a point strenuously

highlighted by the dissenters of the Davis petition for certiorari. Davis, 511 U.S. 1115 (1994)

(Scalia, Thomas, O’Connor, JJ., dissenting in denial of certiorari). With J.E.B. included into its

14
analysis, the Minnesota Supreme Court may very well have reached a different conclusion and

outlawed peremptory challenges on the basis of religion as numerous other state courts have done.

Equally as unpersuasive is any assertion made by the State regarding the privacy interests

at stake of jurors and their religious affiliations or beliefs. This is simply nothing more than pure

posturing. In any voir dire, there are numerous procedural safeguards in place to protect against

such encroachment into one’s private life. Additionally, the kind of invasive and in-depth probing

that the State warns of is very rarely required or exhibited during voir dire. Both the safeguards

already in place and attorneys’ due diligence during the voir dire process eliminate any concerns

advanced by the State regarding the breach of potential jurors’ privacy interests.

CONCLUSION

Speculative and racially motivated strikes like that of Juror 41 turn back the clock on the

progress toward eliminating what Justice Marshall labeled a “shameful practice.” Batson, 476

U.S. 79 at 102 (Marshall, J., concurring). Because the prosecutor struck Juror 41 on the basis of

his race or suspected religious affiliation, this Court should reverse the District Court’s decision

and remand the case so Mr. Manion can at last receive the fair trial guaranteed to him by the

United States Constitution.

Respectfully submitted,

_____________________

Ted E. Booth
BOOTH LLP
2929 Connecticut Ave. N.W.
Washington, DC 20008
Telephone: 207-450-1498
Tbooth3@gmail.com
Dated: November 3, 2010 Attorney for Appellant Frederick Manion

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