B. The Presence of Prejudice
The most disturbing possible analysis of the trial record would yield the
conclusion that the prosecutor may have intentionally introduced allusions
which could invoke religious prejudice in the case against Weiss. The
prosecutor had strong reason to believe that the jury was comprised
predominantly, if not exclusively, of non-Jews.7 Cf. United States ex
rel. Haynes v. McKendrick, supra, 481 F.2d at 154 (noting that the
jury was white); Commonwealth v. Graziano, 331 N.E.2d 808, 812
(Mass. 1975) (noting that no jurors with Italian names were chosen).
He knew the jury was aware that the case had unfolded against a backdrop
of Jewish witnesses and characters. He was aware of the jury's educational
background and could well have assumed that an allusion to a work of
Shakespeare would strike a chord of recognition among many of the
jurors.8 He tied The Merchant of Venice references
in his summation neatly to his calling the trial a "book" at the opening,
thus implying that he had planned to refer to the anti-Jewish work all
along. He explicitly tied The Merchant of Venice allusions to his
theme of greed, evidencing some knowledge of the theme of the play.
Against this backdrop, the dissenting judge below in fact concluded that
the prosecutor's statements "seem calculated to raise prejudice." 930
F.2d at 203 (Restani, J., dissenting). But it is also possible that the
prosecutor did not intend to introduce antisemitism into the case, but in
a rhetorical flourish chose a title for his case with unfortunate,
deep-rooted anti-semitic connotations. His motivations may have been entirely
benign.9 Yet this too would constitute prejudicial error. The
issue here, irrespective of the prosecutor's intent, is whether the
introduction of racial comments "may trigger prejudiced responses in the
listeners that the speaker might neither have predicted nor intended."
McFarland v. Smith, 611 F.2d 414, 417 (2d. Cir. 1979) (emphasis added).
Whether or not the prosecutor meant to inject negative ethnic stereotypes into
the case against Steven Weiss is thus entirely beside the point; the key point
is that he in fact succeeded in doing so.
The contrary conclusion of the majority below simply defies credibility.
The majority's determination that there was no probability of prejudice
on the theory that the prosecutor alluded to The Merchant of Venice
"only obliquely" (930 F.2d at 196) is belied not only by the prosecutor's
reference to "the Merchant of Franklin Square" as the "title of the
book" of the trial, not only by the prosecutor's thrice-recited
"merchant" phraseology, not only by the prosecutor's continuous harping on
Weiss' alleged wealth and greed, not only by the judge's failure to
give a curative instruction (see, e.g., United States v. Hernandez,
865 F.2d 925, 928 n.2 (7th Cir. 1989)) -- but also by the fact that the
attorney for Weiss' co-defendant Barry Gleicher, over the objection of
Weiss' attorney which the judge overruled, explicitly used the
title of Shakespeare's work in his summation to the jury ("Mr.
Bevilacqua [the prosecutor] told you about Shakespeare and The Merchant
of Venice..."). (T. 1539) Thus, whatever doubt there may have been
whether the prosecutor's remarks in fact drew the jury's attention to
The Merchant of Venice, all such doubt dissolved when Gleicher's
counsel made explicit that which previously had been "oblique."
Moreover, and with all due respect to the two distinguished members of
the court's majority, their theory that any possibility of prejudice was
attenuated by the fact that the title character of Shakespeare's play is
the good Antonio, and not the villainous Shylock (930 F.2d at 196), is
preposterous. Worse, it is offensive. It trivializes The Merchant of
Venice's shameful and very considerable contribution to the long
history of anti-semitism. Judge Restani, in dissent, had it exactly right:
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I doubt that many people who have not read The
Merchant of Venice are familiar with Antonio.
The' problem is not one of literary analysis but of
a common negative stereotype. Shylock, a dominant
figure in The Merchant of Venice, is a negative
stereotype, all too familiar to those who have never
read the Bard or even to those whose last passing
acquaintance with him was as high school sophomores.
(930 F.2d at 203.)
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The clear conclusion, amici submit, is inescapable: There is a
substantial likelihood that after closing arguments, when the twelve
jurors walked into the jury chambers to decide Steven Weiss' fate,
they were accompanied by "that thirteenth juror, prejudice."
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FOOTNOTE 5:
Not always is the constitution used as the basis for rejecting
prosecutorial appeals to racial or ethnic bias. As the D.C.
Circuit recently observed, "[f]requently, the decisional
rationale stated has simply been trial unfairness, without
constitutional overtones." United States v. Doe, 903 F.2d 16,
25 n.59 (D.C. Cir. 1990). Here, since Weiss was convicted in a
federal criminal proceeding, at issue is not only the
constitutionality of prosecutorial appeals to ethnic bias, but
also whether the federal statutory or common law standards
governing criminal trials were met.
FOOTNOTE 6:
When introduced to Antonio, the play's Christian protagonist, Shylock states:
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Shylock:
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[Aside] How like a fawning publican he looks!
I hate him for he is a Christian;
But more for that in low simplicity He lends out
money gratis and brings down The rate of usance
here with us in Venice.
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-- William Shakespeare The Merchant of Venice Act I Scene III
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In another well-known scene, Shylock's grief at losing his daughter is comically
outweighed by his shock at losing his valuable ducats:
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Solanio:
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The villain Jew with outcries raised the Duke
Who went with him to search Bassanio's ship...
I never heard a passion so confused, So strange,
outrageous, and so variable As the dog Jew did utter in the streets:
"My daughter! O my ducats! O my daughter!
Fled with a Christian! O my Christian ducats!
Justice! The law! My ducats and my daughter!"
Fled with a Christian! O my Christian ducats!
Justice! The law! My ducats and my daughter!"
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-- William Shakespeare The Merchant of Venice Act II Scene VIII
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FOOTNOTE 7:
The names of the twelve jurors and four alternates (the record
does not indicate which twelve actually deliberated) were:
Martha Bergan, Audrey DiMiceli, Irvin Wortman, Ruth Hiller, Lara
Nicolich, Sharon Bohmer, Carol Komusin, Marie Butler, Elizabeth
Steffens, James Morris, Janet Gravalis, Anna Maria Rampmaier,
Carole Burns, John Martin, Marie Aberle, and Edward Emmerich,
Jr. (J.S. 102) Several jurors, like Martha Bergan and Rugh Hiller,
discussed their church affiliation. (J.S. 33, 94)
FOOTNOTE 8:
The twelve jurors and the four alternates included two with
Masters' degrees (including one with a major in English), a
teacher of Romance languages with credits beyond a Bachelor's
degree, seven who had attended college, and six who had graduated
high school. J.S. at 33, 35, 43-44, 47-48, 55, 58, 62-63, 68-69,
73-74, 76-77, 85, 92, 94.
FOOTNOTE 9:
For the record, amicus curiae Agudath Israel of America,
which also filed an amicus brief in the court below, takes
note of the error in the majority opinion's declaration that
"[a]ccording to... amicus curiae Agudath Israel of America
[the prosecutor's] statements were intended to allude to
Shakespeare's The Merchant of Venice..." 930 F.2d at 196.
On the contrary; Agudath Israel's amicus brief below, like
this brief, took explicit note of the possibility that the
prosecutor's remarks were not intentionally calculated to raise
ethnic bias.
