In United States v. Altareb, 17-1717, the Second Circuit (Sack, Parker, Chin) issued a summary order affirming a conviction for, inter alia, operating an unlicensed money transmitting business and bulk cash smuggling. 

The summary order is notable primarily because the Court was “troubled” by the government’s decision to use a peremptory strike against Juror 19, the only individual of Arab heritage in the jury pool.  (The defendant is also of Arab heritage.)  The government gave several reasons for striking Juror 19, one of which was that “she receives her news from Al Jazeera and the British Broadcasting Corporation.”  The Court stated that “disqualifying a juror for watching a news channel that targets viewers of Arab descent and viewers with an interest in the Middle East is hardly race-neutral.”  The Court went further, stating that “it comes dangerously close to purposeful discrimination.”

Despite these serious concerns, the Court affirmed.  The district court conducted the necessary Batson proceedings, and the Court of Appeals held that, “giving the district court great deference,” there was no clear error.  The government’s strike was based not only on the television-viewing habits of Juror 19, but also on the government’s belief that she might be sympathetic to the defendant, a former taxi driver, because her husband was also a taxi driver, and because she was unemployed.  The Court of Appeals described these proffered reasons as “thin” but nonetheless “afford[ed] wide discretion to the presiding judge.”  The government also struck two other unemployed jurors, giving some support for the notion that this explanation was not pretextual.  The panel concluded that “while we might have reached a different conclusion if we were deciding this question de novo or if the only reason given by the Government was that Al Jazeera was the source of the juror’s news,” affirmance was nonetheless appropriate.

The Court was right to express these concerns about the government’s strike.  Courts should carefully monitor both sides in criminal cases to make sure that juries are picked without reference to the prospective jurors’ ethnicities.  Although the decision was rendered in a non-precedential summary order, one hopes that this will make trial lawyers more careful not to strike jurors based on any inappropriate consideration.  Here, the Court was also confronted by the appearance of unfairness:  the government struck the only juror of the same ethnic heritage as the defendant.  Research by judges and legal scholars suggests that the problem of implicit bias impacts jury selection, and it will be interesting to see in the future if this reality leads to broader policy proposals about how we select juries in the United States.  See Mark W. Bennett, “Unraveling the Gordian Knot of Implicit Bias in Jury Selection,” 4 Harv. L. & Pol. Rev. 149 (2010) (“The implicit bias of jurors can be better addressed by increased lawyer participation in voir dire, while the implicit bias of lawyers can then be curbed by eliminating peremptory strikes and only allowing strikes for cause.”).[1]