Conviction of Iranian-American Muslim Reversed Because of Prosecutor’s Reference to Sharia

From State v. Farokhrany (Ore. Ct. App. Oct. 23, 2013) (some paragraph breaks added):

Defendant appeals his convictions for unlawful distribution of a controlled substance to a minor; unlawful possession of cocaine; attempted sexual abuse in the second degree; sexual abuse [of a minor] in the third degree; and driving under the influence of intoxicants….

During voir dire, the prosecutor engaged potential jurors in a discussion about their views regarding the prosecution calling only one witness to prove a fact. The prosecutor contrasted for the potential jurors a scenario that he asserted “was out of either Iran or Saudi Arabia” where an alleged rape victim was required to produce five male witnesses to prove the rape….

After the jury was sworn, and outside of the jury’s presence, defense counsel requested a curative instruction regarding the prosecutor’s comments on Sharia law. Defense counsel asserted that the prosecution’s comments could bias the jury against defendant because defendant is Iranian and Muslim. The prosecutor stated that he had used this example when speaking with potential jurors in every sex abuse case he had tried in the past few years.

Defense counsel requested that the jury be instructed not to use defendant’s race, religion, or ethnicity against him in reaching a verdict, and that the prosecutor’s reference to Sharia law was merely an illustration of the difference between legal systems. The court refused to give the proposed instruction, commenting that such an instruction was unnecessary as the jury did not know defendant’s ethnicity or religion. According to the court, as far as the jury was concerned, defendant “could be an American,” and “could be just as much a Christian as he is a Muslim.” …

[W]e disagree with the trial court’s implicit conclusion that the jury would not relate the comments about Sharia law with defendant’s ancestry or religion. Defendant’s first and last name were sufficient for a reasonable juror to identify him as a person of Middle Eastern ancestry and, by implication, possibly from Iran or Saudi Arabia (the countries mentioned by the prosecutor) and possibly of the Muslim faith.

The contextual relationship between defendant’s ancestry, the sex crimes for which defendant was charged, and the prosecutor’s comments about the proof requirements in the prosecution of sex crimes in “either Iran or Saudi Arabia” invited the jurors to identify defendant with one of the countries mentioned by the prosecutor and with the dominant religion of those countries. Moreover, the example of Sharia law used by the prosecutor may have suggested to the potential jurors that men from countries that follow Sharia law feel free to commit sexual offenses, as long as the requisite number of witnesses are not present….

We assume that the prosecutor’s comments (which, as noted, the prosecutor indicated that he used regularly when trying sexual abuse cases) were not intended to “appeal to the jurors’ prejudices, fears, or notions of popular sentiment.” We also acknowledge that it is difficult for this court to gauge the prejudicial effect of the kind of prosecutorial conduct that occurred here. That said, we cannot overlook the fact that one likely effect of the prosecutor’s comments was to call the jurors’ attention to defendant’s ancestry and entice the jurors to consider more than the evidence in arriving at a verdict—to also consider defendant’s ancestry and religion—matters that many Americans view negatively.

The premise underlying the constitutional right to “an impartial jury” guaranteed in Article 1, section 11, of the Oregon Constitution is indifference by jurors to matters of race and religion. In the end, regardless of the prosecutor’s motivation in making such comments, this court simply cannot tolerate conduct, blatant or subtle, that even borders on an attempt to introduce, at any stage of a trial, issues of racial, ethnic or religious bias.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.