European ethnic groups win protection from bias in jury selection.

Italian-Americans are protected from racially discriminatory peremptory challenges trader Batson v. Kentucky, the Third Circuit has ruled. The U.S. Supreme Court held in Batson that a prosecutor's summarily striking African-American potential jurors based solely on their race constitutes unlawful discrimination. (476 U.S. 79 (1986).) Subsequent rulings applied Batson to challenges based on jurors' gender and Hispanic ethnicity.

The Court, however, had not specifically extended this protection to an ethnicity of European descent. The Third Circuit decided that "it certainly was not 'objectively unreasonable' for the state courts to have analyzed [the prosecutor's peremptory] strikes under Batson," not did they apply Supreme Court precedent unreasonably. (Rico v. Leftridge-Byrd, 340 F.3d 178 (2003).)

NiaLena Caravasos of Philadelphia, who represented the criminal defendant, said the ruling "expands the parameters of Batson to include ethnic groups, whereas previously the focus was more on Facial groups."

In February 1992, a Philadelphia jury convicted Joseph Rico of first-degree murder and criminal conspiracy. He was sentenced to life imprisonment. Rico appealed, alleging that the prosecutor violated the Equal Protection Clause by exercising 7 of 20 peremptory challenges against prospective jurors whose names indicated Italian-American descent. The trial court bad ruled during jury selection that the prosecutor proffered sufficient race-neutral reasons for the strikes.

The state appeals court disagreed regarding two of the dismissed jurors, reversed Rico's conviction, and remanded the case for a new trial. (Commonwealth v. Rico, 662 A.2d 1076 (Pa. Super. Ct. 1995).) The Pennsylvania Supreme Court reinstated the conviction and held that although Batson did apply to Italian-Americans, the trial court did not err in finding that no purposeful discrimination had occurred in Rico's case. (Commonwealth v. Rico, 711 A.2d 990 (Pa. 1998).) Rico then filed for federal habeas corpus relief.

"This case was reviewed under the new amendments to the habeas statute, and the standard of review is whether the state court's ruling was either contrary to or an unreasonable application of U.S. Supreme Court precedent," said Marilyn Murray of the Philadelphia District Attorney's Office. "The Court never specifically extended Batson to ethnic groups such as Italian-Americans or Irish-Americans, but [the Third Circuit] concluded that it wasn't unreasonable for the state court to extend it to that classification."

Despite this extension, the Third Circuit upheld Rico's conviction, holding that the prosecution's race-neutral explanations of the strikes were sufficient to dispute discriminatory intent. For instance, one of the seven dismissed jurors was challenged because the prosecutor believed she could not comprehend the case, and another because he was "rather odd" and "very, very strange." a third was removed because he turned red and looked uneasy when asked whether the involvement of organized crime would affect his impartiality, and a fourth because she lived in a South Philadelphia neighborhood near the crime scene--both, the prosecution argued, were potentially subject to intimidation. The prosecutor conceded that ethnicity was a factor in the latter two challenges, especially because they involved organized crime.

When considering whether the prosecution's reasons for the challenges were, in fact, ethnically neutral, the court noted that Batson does not entirely prohibit consideration of a juror's ethnicity. Because ethnicity was not the sole reason, the peremptory challenges were valid.