And No Religion Too: Government Attorney Impropely Uses Imam's Religion As Character Evidence In Deportation Proceeding

Is a party's religion fair game in a courtroom?  That's the question raised by a current deportation case in New Jersey, with United States government attorneys being accused of putting Islam on trial along with Imam Mohammed Qatanani.  That question is part of a broader trial, which will determine whether the 44-year-old Palestinian-born spiritual leader should be expelled from the United States to Jordan for having failed to mention in his application for permanent residency here that he was arrested and held by the Israeli military for three months in 1993. 

Defense witnesses characterized Qatanani as a man of peace dedicated to interfaith dialogue and to improving social conditions in Paterson, a gritty, post-industrial city of 150,000. They pointed out that Qatanani cooperated with local law enforcement officials to help prevent any upsurge of Islamic violence in the city, whose large Muslim immigrant community is predominantly Palestinian.  Defense witnesses with expertise on Israel’s administrative detention policies also testified that the Israeli military court system routinely allowed authorities to hold prisoners for months without charges or access to a lawyer. Additionally, they claimed that Israel countenanced techniques that Human Rights Watch characterizes as torture, some of which were subsequently repudiated by the Israeli Supreme Court.

The trial, however, took on a decidedly religious complexion during questioning of a character witness, Rabbi David Senter of Temple Beth Shalom in Pompton Lakes.  The lead government attorney, Alan Wolf, read a passage from the Koran asserting that God will cause unbelievers and hypocrites to "increase in illness and…be swiftly punished on the Day of Judgment."  Gesturing toward Qatanani, Wolf asked Senter, whose testimony emphasized Qatanani’s commitment to interfaith outreach, whether a person who believed in such language could really be the moderate figure Senter believed him to be. Senter replied that he considered it wrong to quote the Koran out of context to impugn Qatanani. 

At the opening of the third day of the trial, Claudia Slovinsky, an attorney representing Qatanani, demanded an apology from Wolf "unless the government is willing to admit that Islam is on trial here."  Immigration Judge Alberto Riefkohl responded, "I don’t think [Wolf’s question about the Koran] was proper, but [also] do not believe it was intended with malice."  I would also argue that the question was inadmissible.

Now, it's important to note that the Federal Rules of Evidence do not apply in deportation proceedings; instead, evidence is admissible provided that it does not violate the alien's right to due process of law. Zerri v. Gonzales, 471 F.3d 342, 346 (2nd Cir. 2006).  However, using these Rules as a guide, I would argue that using religion as character evidence violated Qatanani's right to due process of law. 

Let's start the analysis with Federal Rule of Evidence 610, which states that "[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."  Now, this Rule would apply if Qatanani testified and the prosecution were trying to use his religion as evidence that jurors should not trust his testimony on the witness stand.  Here, however, the prosecution apparently used the Koran passage to prove that Qatanani was an extremist/hatemongerer and not a moderate figure.

Thus, Rule 610 was not implicated, but the proscription of character evidence was.  Assuming that that defense witnesses' testimony about Qatanani’s commitment to interfaith outreach and peaceableness injected his character as an issue into the trial, but even if it did, the prosecution could only challenge his character through reputation and/or opinion testimony under Federal Rule of Evidence 405(a).  Evidence about Qatanani’s religion would not be admissible under this Rule.

To see why, let's look at the opinion of the Third Circuit in Government of the Virgin Islands v. Petersen, 553 F.2d 324 (3rd CIr. 1977).  There, a Rastafarian man appealed his conviction for two counts of second degree murder by claiming that the trial court erred by precluding him from presenting testimony that Rastafarians believe in nonviolence.  The Third Circuit rejected this argument, finding that,

     -"A person may or may not act in accordance with a professed belief; it is the observation of the defendant's behavior over a length of time which is the recognized basis for both reputation and opinion testimony....This longstanding limitation reflects an accommodation between logical relevance on the one hand and the desire to avoid prejudice, confusion, surprise and consumption of trial time on the other. We believe that the appropriate means to elicit opinion testimony under the rule is to inquire directly as to the witness' opinion concerning the relevant character trait of the accused. The district court did not err in refusing to admit the proffered testimony."

So, this analysis seems to indicate that the question was impermissible under the Federal Rules of Evidence, but did it violate Qatanani's right to due process of law?  I would argue that the answer is yes based upon another passage in the Third Circuit's opinion.  In addition to finding that the proposed Rastafarian testimony was impermissible character evidence, it also found that it was not legally relevant.  I agree and would argue that evidence about a person's religion (or lack thereof) to prove that the person is violent/nonviolent/honest/untrustworthy/etc. denies that person due process of law because that person's religion, and not that person, is being put on trial.

-CM