Weiss v. United States of America
Supreme Court of the United States (1990)

This case presents starkly an issue of great importance to the administration of criminal justice, and of correspondingly great importance to the three amici groups that join in this brief: Under what circumstances is a criminal defendant entitled to a new trial when the prosecuting attorney in the initial proceeding has injected -- intentionally or inadvertently -- the poison of racial, ethnic or religious bias?

Steven B. Weiss, an identifiably Jewish defendant, stood trial on charges of conspiring to defraud the United States, committing mail fraud, and making false statements on Medicare claim forms. The prosecuting attorney, in his summation to the jury, alluded repeatedly to Shakespeare's The Merchant of Venice. He used this play, which is famous for the perpetration of anti-semitic stereotypes, as the unifying theme of his summation.

He harped over and over again on Weiss' alleged greed for money -- precisely the characteristic associated with the infamous Jewish character Shylock, Shakespeare's enduring contribution to the historical cancer of antisemitism.

The Second Circuit panel that considered Weiss' appeal was clearly troubled by the prosecutor's remarks. The majority rejected the contention that the allusions to The Merchant of Venice entitled Weiss to a new trial, but conceded that "the prosecutor in this action could have chosen his words more carefully," United States v. Weiss, 930 F.2d 185, 196 (2d Cir. 1991); and that the prosecutor's statements concerning Weiss' alleged profit motivation may have been "undignified and intemperate." Id. at 197. The dissenting judge went a step further, finding that "the [prosecutor's) remarks... seem calculated to raise prejudice"; and that in fact there was "the probability that the jury received a message of ethnic and religious bias." Id. at 203 (Restani J., dissenting).

Amici curiae Agudath Israel of America, the American Jewish Congress and the Anti-Defamation League of B'nai B'rith are national Jewish organizations that have long been involved in combating prejudicial stereotypes, especially anti-semitism. Each of these organizations has already expressed its concern about the prosecuting attorney's remarks within the specific context of this particular case: Agudath Israel as an amicus curiae in the Second Circuit; the American Jewish Congress and the Anti-Defamation League through a joint letter to the United States Attorney for the Eastern District of New York. With the consent of both parties, these amici now respectfully urge this Court to grant Weiss' petition for a writ of certiorari.¹

FOOTNOTE 1:
Amici's interest in this case relates solely to the injection of anti-semitic bias into the jury's deliberations. Amici take no position on any of the other issues raised in Weiss' petition.