A potential juror was dismissed from the case of a Colorado man accused of killing 12 and wounding 70 in a mass shooting. Because of the man's "beliefs as a Christian," he couldn't sit on the jury.
The man, described in news reports as a middle-aged white man wearing a T-shirt, is Catholic. He is opposed to the death penalty, even for accused mass-shooter James Holmes, if Holmes is found guilty. The church is officially against capital punishment, except when necessary for public safety, which the catechism says is very rare, even practically non-existant. Some have worried this will mean Catholics are systematically excluded from the juries of death penalty cases, establishing a judicial bias against Catholics.
The judge was careful, in this Colorado case, to say that potential jurors cannot be dismissed because of their religious beliefs. Even if those beliefs conflict with the law, they can serve on a jury -- so long as they commit to enforcing the law they think is wrong.
That caveat wasn't good enough for the unnamed potential juror, though.
Nor was it good enough for a theology professor in the Boston bombing case, who also said he couldn't be open to the death penalty because of his beliefs. He was also dismissed from jury duty.
Legally, this is quite problematic, as Anthony Santoro, until recently of the Heidelberg Center for American studies, has outlined. The jury is supposed to be the conscience of its community, but the courts are silencing a voice of that conscience. "By excluding individuals with religious objections to capital punishment from juries," Santoro writes, "that community is by definition diminished, and potentially troublesome elements of its conscience neatly excluded."
The voir dire -- as the jury-selection process is called -- is messy, though, and sometimes seems like a slip-shod science of stereotypes. It's hard to imagine religion not being taken into account when lawyers are trying to guess how Americans will feel about matters of crime and punishment.
Clarence Darrow, one of America's most famous historical lawyers, and a famous critic of religion, had a whole system for how to use religion in jury selection.
"If a Presbyterian enters the jury box," he advised defense attorneys, "and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words, before he contaminates the others."
Baptists, Darrow claimed, were even more judgmental than Presbyterians. Darrow was quite skeptical of tea-totalers generally. He also didn't like Lutherans on the jury, and warned especially of Lutherans from Scandinavia. Christian Scientists, similarly, were too serious. Congregationalists and Unitarians were OK, as long as they weren't prohibitionists.
"The Methodists are worth considering," he wrote. "Their religious emotion can be transmitted into love and charity. They are not half bad, even if they will not take a drink, they really do not need it so much as some of their competitors for a seat next to the throne."
Catholics, according to Darrow, could be sympathetic to the accused. Especially in cases where the Catholic person also liked music and art. "He must be emotional," Darrow wrote, "and will want to help you; give him the chance."
Today the potential juror in Colorado doesn't get that chance. In Boston, where roughly a third of potential jurors indicated they opposed the death penalty, the over-emotional Catholic who wants to help the accused is likewise dismissed from the jury pool.
This may not be official legal discrimination, but it's certainly part of the messiness of the process of juries.