La Rocca v. Lane

• Decision Date: 11 March 1974
• Citation: 353 N.Y.S.2d 867,77 Misc.2d 123
• Parties: Father Vincent La ROCCA, of counsel to William Gallagher, Attorney-in-Charge, the Legal Aid Society, Criminal Defense Division, Petitioner, For a Judgment Pursuant to CPLR Article 78, v. Hon. Morgan LANE, Judge of the Criminal Court of the City of New York, Respondent.
• Court: New York Supreme Court

Page 867

353 N.Y.S.2d 867

77 Misc.2d 123

Father Vincent La ROCCA, of counsel to William Gallagher Attorney-in-Charge, the Legal Aid Society Criminal Defense Division, Petitioner For a Judgment Pursuant to CPLR Article 78, v. Hon. Morgan LANE, Judge of the Criminal Court of the City of New York, Respondent.

Supreme Court, Criminal Term, Kings County, Part I.

March 11, 1974.

William J. Gallagher, The Legal Aid Society, Crim. Defense Div., New York City, by Randolph N. Jonakait, Brooklyn, and Robert Hermann, New York City, of counsel, for petitioner.

Louis J. Lefkowitz, Atty. Gen. of N.Y., by Robert S. Hammer, Asst. Atty. Gen., of counsel, for respondent.

GUY JAMES MANGANO, Justice.

This is an Article 78 proceeding to review an order of a lower court judge barring petitioner, while wearing his clerical collar as an ordained Roman Catholic Priest, from representing a defendant in the selection of a jury and in the trial of a criminal proceeding. The basis of the lower court order is that 'there would be a substantial danger that jurors would draw impermissible inferences in the defendant's favor as to her character and veracity'; that '(w)hile it can be assumed that most jurors would react favorably to petitioner if seen in a clerical collar, there is always the possibility that some reactions might be adverse' and that 'long experience in the criminal justice system has established that irrationality and bigotry cannot always be eliminated; (so) that some prospective jurors * * * will fail to follow the court's instructions.'

Petitioner alleges that, in over twenty-four years since his ordination, he has always worn his clerical collar in his everyday activities. He has appeared before the Character Committee, was sworn in as a member of the Bar, had tried non-jury actions, all, while wearing his clerical collar. Petitioner contends that the court's barring him from representing defendant in a criminal jury trial because of his clerical collar deprives him of his basic constitutional privileges; the right of free exercise of religion, and the right to practice law.

The lower court's order presents no complex issues of prevention of free exercise of religion, or of favoring a religion, or of misconduct of an attorney in appearing at court wearing distinctive, religious garb. The petitioner's dress is not claimed to be immodest, bizarre or an affront to the dignity of the court, or an attempt to obtain an unfair advantage in the selection of the jury (see Mtr. of Peck v. Stone, 32 A.D.2d 506, 304 N.Y.S.2d 881). There is thus, but one fundamental issue to be considered, namely: the authority of a presiding judge to determine, as a matter of law, that the outerwear of an attorney, be it a clerical collar, skull cap, crucifix, star of David Or other religious or societal emblem or medallion, distinctive of his faith, or belief will so prejudice the state of mind of a jury panel as is likely to preclude it from rendering an impartial verdict.

Unfortunately, bias to a greater or lesser degree has existed since the memory of man. Recognition of that fact is found in the statutory safeguards of our judicial system. But to assume from outward trappings or from eminence of trial counsel, a bias that rebuts the presumption of a prospective juror's impartiality is to enter into the realm of speculation that leads to the disqualification of entire classes of people from jury service. It is a pre-determination that a juror cannot lay aside his impression or opinion and render a verdict based solely on the evidence presented (See People v. Genovese, 10 N.Y.2d 478, 225 N.Y.S.2d 26, 180 N.E.2d 419). This is no new concept being expounded by this court.

In Purple v. Horton, 13 Wend. 9, 22, Chief Judge Savage in 1834 speaking with prophetic vision, rhetorically asked, 'Is it true that persons belonging to the same society * * * are Ipso facto prejudiced in favor of every person belonging to the same society * * * so that they cannot decide a question of fact impartially between them and other persons? Whatever may have been the state of society in the days of Finch and of Blackstone, it is not so now.'

Closer to the instant case is Searle v. Rom. Cath. Bishop of Springfield, 203 Mass. 493, 498, 89 N.E. 809 (1909) wherein a Roman Catholic Bishop was sued for alleged conversion of a wooden building, considered as personal property, situated on the land of the Roman Catholic Bishop of Springfield, a corporation holding title to the realty for the Roman Catholic Church. The ruling of the lower court that no person of the Roman Catholic faith should sit as a juror in that case was reversed as 'it could not successfully be contended that holding the same religious belief as one of the parties, or affiliation with him in the same church, would disqualify a person from sitting as a juror in his case. The application of such a doctrine would be unjust and impracticable.' To the same effect, see Barton v. Erickson, 14 Neb. 164, 15 N.W. 206 (1883) wherein the Lutheran Church was involved, and United States v. Eagan, 30 F. 608, 609 (8 Cir. 1887) wherein the court would not bar a juror 'for the fact that a juror belonged to one party, and was a strong partisan * * * any more than a challenge on the ground that he belonged to one church, and was a strong and bigoted adherent of that church.' Exclusion of entire classes of people from the jury on grounds of implied prejudice has not been favored by our courts not may 'bias or lack of impartiality of fairness * * * be inferred as a matter of law.' (People v. Reilly, 71 Misc.2d 227, 229, 335 N.Y.S.2d 841, 843; Hildreth v. City of Troy, 101 N.Y. 234, 4 N.E. 559; Fishbaugh v. Armour & Co., 4 Cir., 185 F.2d 541, cert. den. 342 U.S. 914, 72 S.Ct. 361, 96 L.Ed. 683).

The strength and confidence of a citizenry to render an impartial verdict is not weakened by the fact that a prospective juror had a prior opinion or an acquaintanceship with or dislike of a trial attorney or been a client of either of trial counsel. See, People v. Wolter, 203 N.Y. 484, 97 N.E. 1113 and People v. Genovese, Supra, which held that the prior opinion of a juror was no bar; Garland v. United States, 4 Cir., 182 F.2d 801, where mere relationship to a prosecuting attorney was no bar; Lane v. United States, 5 Cir., 321 F.2d 573, cert. den., 381 U.S. 920, 85 S.Ct. 1551, 14 L.Ed.2d 440; Carpintero v. United States, 1 Cir., 398 F.2d 488; Daut v. United States, 9 Cir., 405 F.2d 312, cert. den., 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114, where being friends of or having attended law school together with the prosecuting attorney was no bar; People v. McQuade, 110 N.Y. 284, 18 N.E. 156, where being a former client to trial counsel was no bar; Bateman v. United States, 9 Cir., 212 F.2d 61, where the mere having of some prejudice against one of the attorneys was no bar; and United States v. Nadaline, 5 Cir., 471 F.2d 340, where even relationship to the foreman of the jury was no bar. As was best summed up in Peerless Insurance Co. v. Schnauder, 5 Cir., 290 F.2d 607, 610, cert. den., 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33, the fact that the three jurors involved were--'one * * * because he had known the attorney 'many many years'. Another had known him 'for some time' 'just as a friend.' The third knew him 'personally' 'quite a number of years' having 'met him at different occasions,' and at 'social functions' * * * were (nevertheless) improperly excused.'

The qualifications of prospective jurors and the grounds for their discharge were fully set forth in Title 6 of the Code of Criminal Procedure and thereafter and as reenacted with greater safeguards in Title J of the Criminal Procedure Law. Both statutes provided among other qualifications 'a state of mind that is likely to preclude him from rendering an impartial verdict based on the evidence adduced at the time' (Criminal Procedure Law, Sec. 270.20(1) (b), Code of Criminal Procedure Law, Sec. 376(2). The "state of mind' referred to * * * as a ground of challenge for cause, means actual bias as contrasted to implied bias.' (People v. Prior, 268 App.Div. 717, 721, 54 N.Y.S.2d 150, 153, aff'd 294 N.Y. 405, 63 N.E.2d 8). 'Implied bias' under the old Code was expressly limited by definition to only those cases set forth in Section 377, subdivisions 1 through 8. In the new Criminal Procedure Law the words 'implied bias' were eliminated as the trend and rationale of decisional law is that unless the prospective juror lacks the specified statutory qualifications (listed in 270.20 C.P.L.), he cannot be barred from service upon speculative implications or assumptions of bias. Prejudice must, in fact, be shown and may not be presumed as a matter of law, and must be established as a demonstrable reality (Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734; United States v. Haynes, 398 F.2d 980, cert. den., 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 124; Hildreth v. City of Troy, Supra, and People v. Reilly, Supra).

If the outward clerical collar or other symbol denoting religious faith and integrity be barred, then what test other than Voir dire may be applied to a trial counsel in a local community who, despite...