In United States v. Nelson, 277 F.3d 164, 207-12 (2d Cir.), cert. denied, 537 U.S. 835, 123 S. Ct. 145, 154 L. Ed. 2d 54 (2002), the United States Court of Appeals for the Second Circuit underscored that efforts to balance the composition of a jury nonetheless violate Batson, because such conduct requires exclusion of prospective jurors on a prohibited basis (i.e., religion or race).
In Nelson, the defendant was acquitted on state criminal charges, and was later charged with federal hate crimes related to the fatal stabbing of a Jewish man. Id. at 170-72.
The federal trial court believed that the state trial had resulted in an acquittal "'because the . . . jury did not represent the community,'" and decided that it would empanel a representative jury. Id. at 171-72 (quoting district court).
Therefore, it replaced an excused African-American juror with another African-American juror, rather than the Caucasian first alternate, and it replaced another empaneled Caucasian juror with a Jewish juror, also selected out of order from the alternate list. Id. at 172.
The court justified its action by reference to its desire for a balanced jury. Id.
The Second Circuit held that the exclusion of jurors based on race or religion was an "error . . . made plain by the reasoning of Batson," that "could not constitutionally have been achieved at the instigation of the parties." Id. at 207.
The Court also said:
"Although the motives behind the district court's race- and religion-based jury selection procedures were undoubtedly meant to be tolerant and inclusive rather than bigoted and exclusionary, that fact cannot justify the district court's race-conscious actions." Id.