These cases support the proposition that "IA's constitute a cognizable 
racial group for Equal Protection" for jury selection.

This then leads one to inquire as to what areas besides Jury Selection,
have IAs been adjudicated as a cognizable racial group, and to what 
advantages can this List be put in fighting IA Discrimination and Defamation? 
 
As an Aside: Where is the National Italian American Bar Association, and 
what has the NIABA been doing in furtherance of the interests of the IA 
Community? What is their purpose? 

>From the "It gets curiouser and curiouser dep't". The Defendant Joseph  
"Rico himself has no Italian roots but changed his surname from Gavel to 
appear Italian so he could advance in the mob." !!!!

So it appears as if the Prosecutor was attempting to keep IAs off the jury,
because they "might sympathize with him" as a "faux" IA !!!! [;-) LOL.
(See the complete article, not previously available).

Now for Joan Palermo's enlightening legal analysis.  
=============================================================
Richard,

This certainly sounds to me like a Batson violation. Batson v. Kentucky, 
476 US 79 (1986), where the Supreme Court held that prosecutors may 
not exercise peremptory challenges to exclude prospective jurors based 
on their being of the same race as the defendant. 

The Court later applied Batson in the reverse, i.e., to also preclude 
criminal defendants from using peremptory strikes in a racially 
discriminatory manner. 
While the primary holding in Batson was intended to protect the rights of a 
defendant, the Court also recognized the rights of the jurors themselves, 
and noted that by denying a person participation in jury service on account 
of his race, the State unconstitutionally discriminates against the excluded 
juror. I believe Batson has also been extended to some civil cases.

The Batson decision cited Castaneda v. Partida, 430 US 482 (1977), as
governing the determination of "cognizability" for equal protection objections
to peremptory strikes during jury selection. In Castaneda, "cognizable' is
defined as "a recognizable, distinct class, singled out for different
treatment under the laws, as written or applied". Using this standard, a
federal district court in Brooklyn held that Italian Americans constitute a
cognizable racial group for Batson purposes. US v. Biaggi, 673 F. Supp. 96
(EDNY 1987). Although the Biaggi court accepted the government's "racially
neutral" explanations for its challenges, it nevertheless held for the
proposition that IA's do constitute a cognizable racial group for equal
protection purposes. 

In so doing, it cited the pre-Batson Supreme Court holding in Hernandez v. 
Texas, 347 US 475 (1954), that the ancestry-based exclusion of Mexican 
Americans from juries was unconstitutional, and where the court rejected 
the notion that only two "racial" groups, (white and black), are deserving of 
equal protection.  Further, Biaggi has been cited with approval in US v. 
DiPasquale, 864 F.2d 271 (3rd Cir. 1988).

There is certainly authority for the proposition that IA's constitute a
cognizable racial group for equal protection purposes under Batson, and, 
while the Supreme Court may not have specifically ruled on the issue of IA's 
in this context, I don't think its definition of race or ethnicity is as 
narrow as 
the Pennsylvania court apparently found it to be. There is certainly enough
federal law for a colorable Batson claim in this case, and this decision
sounds really bad to me. Of course, this is assuming that the newspaper
article reported the facts accurately. I would be interested in reading the
decision in the Rico case and the specific findings and reasoning of the
court, and also, in knowing the reasons "unrelated to ethnicity" that were
offered by the prosecutor for the challenges. 

Joan Palermo
==========================================================
November 16, 2001 at 12:20:28 PST Italian-Americans Kept Off Mobster  Jury

PHILADELPHIA (AP) - A federal judge agreed with the state Supreme Court 
that prosecutors did not discriminate against Italian-Americans by excluding 
six of them from a reputed mobster's murder trial. 

The ruling on Thursday said the defense's appeal failed to show a precedent 
for considering Italian-Americans a racial group. An attorney for defendant 
Joseph Rico, who was convicted, said Friday that he is appealing the decision.
 
In the ruling, U.S. District Judge William Yohn said prosecutors could use 
peremptory challenges to keep Italian-Americans off the jury in Rico's 
first-degree murder trial. Such challenges let attorneys remove jurors 
without stating a reason. 

Rico himself has no Italian roots but changed his surname from Gavel to 
appear Italian so he could advance in the mob. The jury, which did include 
one Italian-American, convicted Rico in the 1983 death of a New Jersey 
drug dealer. The conviction was overturned in 1995 when a state appeals court 
said prosecutors violated Rico's rights by trying to exclude jurors who might 
sympathize with him because of their ethnicity. The conviction was reinstated 
in 1998 by the state Supreme Court, which said prosecutors challenged the 
potential jurors for reasons unrelated to their ethnicity. In Rico's appeal 
to the federal court, his attorney cited a 1986 U.S. Supreme Court case 
involving an effort to keep blacks off a jury in a case with a black 
defendant. Yohn refused to broaden the high court's definition of ethnicity, 
saying Rico's appeal "points to no other U.S. Supreme Court precedent that 
recognizes Italian-Americans as a cognizable racial group so it cannot be 
said that the Supreme Court of Pennsylvania violated 'clearly established 
federal law.'" Rico is in prison serving a life sentence. -- 
========================================================
Italian Americans NOT "Reliable" for Jury-- Federal Judge Determines
Date:   11/16/01
 

The ANNOTICO Report
Thanks to Manny Alfano at IAOV

Manny prefaces his post "Are We Italian Americans or Americans" 
with the comment: "If we had a doubt what we are, or what we should call 
ourselves ... the court has settled that argument"

While that is Very "Unsettling" to me, I am More Concerned that the 
Prosecutor and Judge INFERS and INTIMATES  that Italian Americans are 
Pro Criminal, Pro Mob, and Pro Mafia, and therefore "unreliable" for Jury 
Duty.

Can someone advise Guiliani, Tonelli & Krase, that THIS is one of the BITTER 
FRUITS of  "The Sopranos".

Would it be permissible to "exclude" Blacks, Hispanics, Asians, or Jews from 
Juries in which members of their ethnicity/race were being tried?

This seems to be a clear violation of the 14th Amendment, "Equal Protection 
Clause", and should be challenged.

I await the comments of other Attorneys.  
=====================================================
ITALIAN-AMERICANS KEPT OFF MOBSTER JURY

PHILADELPHIA (AP) - A federal judge agreed with the state Supreme Court that
prosecutors did not discriminate against Italian-Americans by excluding six
of them from a reputed mobster's murder trial....
====================================================