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




"The constitution prohibits racially biased prosecutorial arguments." McKlesky v. Kemp, 481 U.S. 279, 309 n.30 (1987). A prosecutor may of course "strike hard blows, [but] he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88 (1935). "Any appeal to racial prejudice is a foul blow which must be rejected by the courts." United States v. Krohn, 573 F.2d 382 (lOth Cir.), cert. denied, 436 U.S. 949 (1978).5

In ruling that racially biased prosecutorial arguments cannot be tolerated, federal courts have been guided by Judge Frank's famous dissent in United States v. Antonelli Fireworks Co., 155 F.2d 631, 659 (2d Cir.), cert. denied, 329 U.S. 728 (1946):

A keen observer has said that "next to perjury, prejudice is the main cause of miscarriages of justice." If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice.

Here, whether by calculated design or unfortunate happenstance, the prosecutor's repeated allusions to The Merchant of Venice in a case against an identifiably Jewish defendant, and in the broader context of a closing argument that harped incessantly on the theme of wealth and greed, did indeed "summon that thirteenth juror, prejudice."

A. Shakespeare's Ignoble Legacy

The Merchant of Venice is perhaps the most famous anti-semitic work of literature in the Western world, and its' colorful villain, Shylock, is the most notorious Jewish scoundrel.

One's first association with The Merchant of Venice is invariably Shylock. "Shylock" has become a term of disapproval, a link in the history of anti-Jewish stereotype, just as Shylock's "pound of flesh" has become a metaphor for cruel and relentless greed.

Bronstein, Shakespeare. The Jews and The Merchant of Venice, 20 Shakespeare Quarterly 3 (1969).

In The Merchant of Venice [t]he Jew has been used to instruct the audience and the play's Christians about the potential and essential evil of his race; he has been used to show that a Jew with power is a terrible thing to behold, is capable of the vilest sort of destruction.

Cohen, The Jew and Shylock, 31 Shakespeare Quarterly 53 (1980).

One Shakespearean critic writing about Shylock and The Merchant of Venice in Nazi-occupied Czechoslovakia explained:

While I was at work, I was often asked if I was writing a topical book. This was my reply:

The Jews... are still looked upon as Shylock, or, rather, Shylock still stands for the Jews. Therefore, the book is topical.

Sinsheimer, Shylock: The History of a Character (1947, 1963).

The prosecutor did more than simply allude on three separate occasions to The Merchant of Venice; he dramatically suggested to the jury that the title of the case against Steven Weiss should be related to the title of Shakespeare's anti-Jewish play. And, in developing the theme around which he crafted his closing argument -- Weiss' alleged wealth and greed -- the prosecutor himself drew for the jurors' benefit the prejudicial connection to The Merchant of Venice:

Money is what this case is all about, money. That's what the corporate seal is for these defendants, these multi-million dollar corporations, their seal is the dollar, the government's dollar, that's what they were after. These are merchants of greed, deceit and corruption. (T. 1508)

The prosecuting attorney's summation to the jury thus tended to conjure up a classical stereotype of a rich and clever Jew, unethically attempting to amass as much wealth as possible. Indeed, the pervasive theme of The Merchant of Venice is lust for wealth. See, e.g., Nathan, Evervone Loves Money In The Merchant of Venice, 10 San Jose Studies 3, 38 (1984). The Merchant of Venice is famous not only for its blatant anti-semitism but also for its notorious portrayal of Shylock as a Jew who is wealthy and greedy. See Bronstein, Shakespeare The Jews and The Merchant of Venice, 20 Shakespeare Quarterly 3 (1969).6

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:

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.)

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."


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.

When introduced to Antonio, the play's Christian protagonist, Shylock states:

Shylock: [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.

-- William Shakespeare The Merchant of Venice Act I Scene III

In another well-known scene, Shylock's grief at losing his daughter is comically outweighed by his shock at losing his valuable ducats:

Solanio: 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!"

-- William Shakespeare The Merchant of Venice Act II Scene VIII

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)

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.

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.

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