WONSCHIK v. U.S. The NACDL's Amicus Brief argument is below. See more eye-popping, jaw-dropping photographs at http://rexcurry.net/pledge2.html Read more amazing articles about every aspect of the totalitarian pledge at http://rexcurry.net/pledge1.html

Support the "STOP THE PLEDGE" Campaign and support historical and educational research about the Pledge, its author and his ilk.

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A pdf version of the entire Wonschik amicus brief exposing the Pledge of Allegiance is at http://rexcurry.net/pledgewonschik.pdf
The brief of the NACDL - National Association of Criminal Defense Lawyers http://rexcurry.net/pledgenacdl.html
Track the progress of the Wonschik case in the Supreme Court docket at http://www.supremecourtus.gov/docket/03-10249.htm
Complaints were filed against two Judges who led jurors in chants in California.  http://rexcurry.net/pledgecomplaints.html
And see Postcards exposing the original Pledge of Allegiance at http://www.cafeshops.com/rexy.9216669
And see photographic images etc at http://stores.ebay.com/Rex-Curry

It is ironic to note that West Virginia had banned the American salute in 1942 even though it continued to compel the robotic chanting daily. http://rexcurry.net/pledgenacdl.html The following excerpt is from an article in the New York Times - West Virginia Banishes 'Nazi' Salute in Schools By The United Press. on February 2, 1942, Monday CHARLESTON, W. Va., Feb. 1 -- West Virginia has decided to have its school children salute the American flag the way grown-ups do because the present classroom salute is "too much like Hitler's." The change was agreed upon by the State Board of Education after a conference with patriotic and educational organizations which had reported complaints from parents. For a photograph of the early Pledge of Allegiance see http://rexcurry.net/pledge-allegiance-pledge-allegiance2.jpg

Pledge of Allegiance controversy over America's early Nazi salute. http://rexcurry.net/pledgenacdl.html Excerpts from New York Times March 9, 1937, Tuesday - SCHOOLS HERE TRY 'NAZI-TYPE' SALUTE; Row Raised Over New Pledge to Flag With Extended Arm--Principals Assail Idea A new type of flag salute, recommended by the State Department of Education and submitted to the principals through a circular issued by Harold G. Campbell, Superintendent of Schools, has brought confusion and uncertainty as to the proper method of pledging allegiance to the American flag, it was learned yesterday. In the traditional military salute the hand is raised to the head, at the proper time raised straight and then whipped briskly to the side. THE OLD AND NEW SCHOOLBOY SALUTE TO THE FLAG Students of Bryant High School in Queens demonstrating the change of posture as the Pledge of Allegiance is ... "We still have the traditional salute in the New York City schools," he said. ... "I can see no cause of alarm-this salute: does not try to copy Hitler's ... For a photograph of the early Pledge of Allegiance see http://rexcurry.net/pledge-allegiance-pledge-allegiance2.jpg **************** Army Salute for Children  October 3, 1941, Friday New York Times ... use the regulation Army salute in the daily pledge of allegiance to the flag. ... the arm-extended salute because of its similarity to the Nazi greeting. ********************** The Syracuse Herald, Thursday, March 25, 1937 Rural School Choice OF Flag Salutes .. military fashion as the first words of pledge of allegiance are Although the ... salute is nothing either Nazi or Fascist about the suggested Mr Shingle ... http://rexcurry.net/pledge-of-allegiance1942fresno.pdf http://rexcurry.net/pledge-of-allegiance1941iowa-military.pdf http://rexcurry.net/pledge-of-allegiance1941jehovah-catholic.pdf http://rexcurry.net/pledge-of-allegiance1942lowell-mass.pdf http://rexcurry.net/pledge-of-allegiance1937syracuse-herald.pdf http://rexcurry.net/pledge-of-allegiance1937new-york.pdf

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This is the body of the argument in the NACDL Amicus brief in Wonschik v. U.S.

BRIEF FOR THE NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS IN
SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE
The National Association of Criminal Defense Lawyers (NACDL), a nonprofit corporation founded more than 40 years ago, is the only national bar association working in the interest of public and private criminal defense attorneys and their clients.  The NACDL was founded in 1958 to ensure justice and due process for persons accused of crimes; foster the independence and expertise of the criminal defense profession; and promote the proper and fair administration of justice.  The NACDL is committed to preserving justice, fairness, and due process within America's criminal justice system.  
The NACDL has more than 10,400 direct members nationwide, and eighty state and local affiliate organizations with 28,000 members.  Membership includes private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors and judges.  The American Bar Association recognizes the NACDL as an affiliate organization and awards it full representation in its House of Delegates.
This petition particularly concerns the NACDL because it addresses one of the most fundamental rights essential to the credibility of our criminal justice system, a defendant's Sixth Amendment right to a fair and impartial jury.  The NACDL has expertise in the criminal law field that may assist the Court in this case.  The NACDL has strong interests in seeing that criminal trials provide a fair and unbiased forum for the triers of fact to adjudicate the issues before them.  Therefore, the NACDL respectfully urges the Court to grant the Petition for Certiorari.
SUMMARY OF THE ARGUMENT
I.    Due to the vital importance our judicial system places on obtaining fair and impartial judgments, this Court has been jealous in protecting the entire trial process from bias.  These protections include the right to counsel free from conflicts of interest, Glasser v. United States, 315 U.S. 60, 70 (1942); the right to an impartial judge, Tumey v. Ohio, 273 U.S. 510, 522 (1927); the right to an fair and unbiased jury selection process, Smith v. Phillips, 455 U.S. 209, 225 (1982) (Marshall, J., dissenting) (citing Ham v. South Carolina, 409 U.S. 524 (1973) and Ristiano v. Ross, 424 U.S. 589 (1976)); and the protection of impaneled jurors from bias and improper influence during the trial.  Remmer v. United States, 347 U.S. 227, 229 (1954).  This case directly implicates this Court's protection of the trial process from bias, specifically the right to fair and unbiased jury selection.
By requiring jurors to recite the Pledge of Allegiance in a criminal case in which the United States is a party, the trial court created an atmosphere of unacceptable bias that tainted the entire jury panel in the instant case.  Requiring the jury panel to swear allegiance to one party violates this Court’s long-standing goals of protecting the entire trial process, from jury selection to judgment, from bias.  In order to ensure that the Sixth Amendment rights of criminal defendants continue to be protected from all forms of bias before and during a trial, this Court should accept the instant case for review.
II.    From the founding of the Constitution, this Court has protected the impressionable minds of jury members from possible bias in and outside the courtroom.  Notably, this Court has shielded jury members from potential bias and partisan remarks from judges and prosecutors that may taint a criminal defendant’s right to a fair and impartial trial.
In this case, the judge made partisan remarks to  potential jurors concerning the events of September 11, 2001, telling the prospective jurors of their obligation to the United States and then asking them to join him in saying the Pledge of Allegiance.  Shortly after, the prosecutor referred to that conduct during voir dire.  As a result, the Petitioner's right to a fair trial was affected.  The Tenth Circuit failed to address whether the judge's partisan remarks, magnified and reinforced by the prosecutor, tainted the Petitioner’s right to a fair trial.  Accordingly, this Court should accept the instant case for review to ensure that a criminal defendant's Sixth Amendment right to a fair and unbiased trial is protected.

ARGUMENT
I.
THE TRIAL JUDGE'S REQUIREMENT THAT ALL VENIRE PANEL MEMBERS RECITE THE PLEDGE OF ALLEGIANCE VIOLATED THE PETITIONER'S RIGHT TO A FAIR AND IMPARTIAL JURY BY CREATING A BIAS WITHIN THE ENTIRE JURY POOL THAT WOULD NOT BE CORRECTABLE THROUGH THE JURY SELECTION PROCESS.
A hallmark of our country’s judicial system has always been that a fair and impartial jury trial cases is one of the fundamental rights guaranteed a criminal defendant.  The language in Article III of the Constitution, requiring that “[t]he trial of all crimes, except in Cases of Impeachment, shall be by Jury,” is one of the rare instances in which individual rights were explicitly recognized in the Constitution prior to the adoption of the Bill of Rights.  The right to a jury trial has been seen as a “barrier to the tyranny of popular magistrates in a popular government.”  Federalist No. 83, 522 (Benjamin Fletcher Wright ed., Metrobook 1961) (1788).  The Framers went further to define the right to an impartial jury by adopting the Sixth Amendment, which “afforded further assurances, beyond those given by Art. III, § 2, cl. 3, relating to trial by jury, in respect to speed, publicity, impartiality, etc.”  Frazier v. United States, 335 U.S. 497, 511 (1948).
This Court recognized the vital importance of an impartial jury early in our country’s history.  In 1807, Chief Justice John Marshall wrote “[t]he theory of the law is that a juror who has formed an opinion cannot be impartial.”  Reynolds v. United States, 98 U.S. 145, 155 (1807).  This Court has further indicated that, “[i]n the ultimate analysis, only the jury can strip a man of his liberty or his life.  In the language of Lord Coke, a juror must be as 'indifferent as he stands unsworne.'  []  His verdict must be based upon the evidence developed at the trial."  Morgan v. Illinois, 504 U.S. 719, 727( 1992) (quoting Sir Edward Coke, Commentaries upon Littleton 8 (Charles Butler ed., Legal Classics Library 18th ed. 1985) (1628)).
In this case, the selection process was impermissibly tainted by the trial judge's request that the entire jury venire pool stand and recite the Pledge of Allegiance prior to jury selection.  Furthermore, that bias was not amenable to cure by the jury selection process, since it was the trial judge who required the prospective jurors to recite the pledge.
A.
The Trial Judge’s Requirement That All Venire Panel Members Recite The Pledge Of Allegiance Violated The Petitioner’s Right To a Fair And Impartial Jury As Guaranteed By The Sixth Amendment Of The United States Constitution.
The instant case implicates this fundamental right to an impartial jury in a criminal case.  The NACDL believes that the conduct of the trial judge in requiring an entire venire panel to recite the Pledge of Allegiance in a case where the United States is a party violates a defendant’s right to a fair and impartial jury.  By requiring jurors to, in essence, swear allegiance to one party in the case at the very beginning of the trial process, the trial court created an unacceptable atmosphere in the courtroom that biased the jury against the Petitioner.  This requirement, to swear allegiance to one party in the case, violated the long established rule that courts must protect the entire trial from bias, from the jury selection process until the judgment.
Requiring jurors to recite the Pledge of Allegiance in a criminal case in which the United States is a party goes against this Court’s long standing goals of protecting jurors from improper bias.  While the Tenth Circuit believed that the recitation of the Pledge of Allegiance might have invoked a “more enlightened patriotism,” thus imbuing the chosen jurors with the desire to sit as “impartial finders of fact,” United States v. Wonschik, 353 F.3d 1192, 1199 (10th Cir. 2004), such a belief runs counter to the decisions of this Court and the fundamental guarantees of the Constitution.  And although the Tenth Circuit ultimately rejected the contention that “jurors inferred from the Pledge of Allegiance a patriotic obligation to serve as a rubber stamp for the prosecution,” id. at 1198, that conclusion underestimates the potential for bias in such circumstances.  
Bias does not need to rise to the level of unabashed support for one party to violate the Sixth Amendment.  While a jury acting as a rubber stamp for the prosecution would surely evince bias, lesser prejudice against a defendant is no less damaging to Sixth Amendment rights.  By creating an atmosphere of bias through the recitation of the Pledge of Allegiance, the trial court tainted the jury.  Once the jurors recited the Pledge as required, the court created jurors who were no longer indifferent.  
This Court’s decision in West Virginia State Board of Education v. Barnette is instructive as to the impermissible coercive effect that compulsory recitation of the Pledge of Allegiance can have.  319 U.S. 624, 640 (1943).  While the facts in Barnette dealt with the coercive effect on an individual who is required to recite the Pledge of Allegiance, the same coercive effect can improperly pressure a jury panel and give rise to bias.  Barnette was decided at a time when, much as today, many Americans believed that "patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine."  Barnette, 319 U.S. at 641.  In Barnette, this sentiment led a school district to compel its students to recite the Pledge of Allegiance.  In the instant case, it led a judge to compel all the potential jurors present in a courtroom to recite the Pledge of Allegiance.  In both cases, "compelling the flag salute and pledge transcends constitutional limitations."  Barnette, 319 U.S. at 642.
Given the uncertain times this country is facing, patriotism and nationalism are a stronger force today than they have been in recent decades.  This Court was concerned in Barnette with such expressions of nationalism, and this Court should be concerned in the instant case as well.  While “[n]ationalism [was] a relatively recent phenomenon” at the time that Barnette was decided, this Court prophetically noted that “at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls.”  Barnette, 319 U.S. at 640.
Much like this Court's recognition in Barnette that race, creed or political beliefs have led to compulsory violations of free speech, so too has this Court recognized that political bias can taint the jury selection process just as racial, gender or religious bias can as well.  The likelihood that at least one juror, and possibly several, being influenced to support the federal government by the recitation of the Pledge of Allegiance in the current environment is not far fetched.  The decisions of the Court discussed above reflect a broad concern against any bias and taint to the trial process, the NACDL believes that concern needs to be extended to this issue as well.
Forcing members of the jury pool to express a certain belief in a court of law is no different from forcing a child in a school to participate in the Pledge against their beliefs; however, the consequences are potentially more severe.  As this Court stated in Barnette, “[n]ational unity as an end which officials may foster by persuasion and example is not in question.  The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.”  Id. at 640.  This question is analogous to what occurred in the courtroom in the instant case.  The prosecution has every right to use persuasion and examples throughout the trial to convince an impartial jury to convict a defendant.  The problem is whether a court can constitutionally compel allegiance with the prosecution during the selection process.  
In Barnette, this Court determined the First Amendment prohibited this type of coercion.  In the instant case, the NACDL believes that the Sixth Amendment also prohibits this type of coercion in the courtroom.  Requiring the jurors, as well as the participants, to swear allegiance to one party in the case prior to any evidence being presented improperly pressures the jury, taints an impartial jury selection process, and potentially biases at least some members of the jury against a defendant.
B.
Requiring all members of a potential jury panel to recite the Pledge of Allegiance prior to jury selection creates a bias within the entire jury pool that is not correctable through the selection process.
Since its initial decisions on the boundaries of the Sixth Amendment, this Court has developed a jurisprudence that indicates that all phases of the jury selection process must be free from bias and prejudice, free from equal protection violations relating to race and gender, and that venire panels must represent a fair and impartial cross-section of the population.  See Batson v. Kentucky, 476 U.S. 79, 84-86 (1986).
In Batson, this Court determined that a prosecutor was prohibited from using preemptory challenges to exclude potential jurors on the basis of race.  Batson, 476 U.S. at 84.  This Court specifically noted that an unbiased petit jury is vitally necessary to protect “a person accused of crime against the arbitrary exercise of power by prosecutor or judge.”  Id. at 86.  The decision in Batson reflects this Court’s protection of the jury selection process in order to prevent bias from infecting the trial.
This Court’s concern over state sanctioned discrimination, and bias in the jury selection process which can eviscerate a defendant’s protection from the arbitrary exercise of power by a prosecutor or judge, also includes political bias.  “Jury selection is the primary means by which a court may enforce a defendant's right to be tried by a jury free from ethnic, racial, or political prejudice.”  Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981).  The integrity of the jury selection process is crucial to ensuring the Sixth Amendment rights of each defendant are met.  Where political bias that directly benefits one party in a criminal case is present, these rights are not protected.
Political bias in the jury selection process is recognized as a source of potential taint.  In most cases, bias can be screened through the use of preemptory and for cause jury challenges.  What is deeply troubling about the instant case is the ineffectiveness of this tool.  When the judge requires every potential juror to pledge their allegiance to one party in a case, there may never be enough preemptory, or for cause challenges, to remove all biased members.  The taint is fundamental, affecting the entire panel, tipping the balance in favor of the prosecution before the trial proceedings ever commence.
This understanding, that jury pools can be tainted prior to the selection process, is represented in fair cross-section challenges to jury pools under the Sixth Amendment.  These cases further indicate the Court’s extension of protection against bias to the initial jury pool.  In part, the decision in Batson, reinforcing the requirement that a fair cross-section of the community be represented in the venire panel, is an example of this protection against bias or taint to the process of a jury trial.  In Teague v. Lane, this Court articulated the purpose of the fair cross-section requirement saying:
The requirement that the jury venire be composed of a fair cross section of the community is based on the role of the jury in our system.  Because the purpose of the jury is to guard against arbitrary abuses of power by interposing the commonsense judgment of the community between the State and the defendant, the jury venire cannot be composed only of special segments of the population.  
Teague v. Lane, 489 U.S. 288, 315 (1989).
    This statement reflects the precise reason that the NACDL believes the Court should review the instant case.  The NACDL believes that it is the role of an impartial jury to interpose itself between the government and the defendant and to guard against the arbitrary abuse of power.  In the instant case, once the members of the jury panel stood and recited the pledge, they were no longer unbiased arbiters.  The members of the jury at that point had, in essence, become potentially predisposed to the United States government and no longer poised to protect against arbitrary abuses of power.  
While the taint in the instant case occurred between the initial selection of the venire panel and the selection of the petit jury, it no doubt occurred during the jury selection process.  In effect, this bias is no different than the bias in Teague and Batson.  Accordingly, this Court should review the instant case to reaffirm the proposition that the entire trial process should be free from bias and, particularly, prior to and during the jury selection process.
II.
THE TRIAL JUDGE'S REMARKS CONCERNING EVENTS AFTER 9/11, COUPLED WITH THE PROSECUTOR’S REAFFIRMATION OF THE TRIAL JUDGE’S REMARKS, TAINTED PETITIONER’S RIGHT TO AN IMPARTIAL JURY GUARANTEED BY THE SIXTH AMENDMENT.
As previously discussed in section I. of this brief, requiring potential jurors to recite the Pledge of Allegiance impermissibly injects a view toward finding for the government before the trial ever commences.  In this particular case, however, that prejudice was magnified by the personal and partisan comments made by the trial judge immediately prior to asking everyone in the courtroom to stand and join him in saying the Pledge of Allegiance.  In addition, the prejudicial impact of those comments was then restated and reenforced by the initial comments of the prosecutor during voir dire.
In recognizing that the framers of the Constitution strove to create a judicial system that provided “an accused with the right to be tried by a jury of his peers,” to “safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge,”  Duncan v. Louisiana, 391 U.S. 145, 156 (1968), this Court has closely guarded the right to a fair trial, by protection a defendant's right both to an impartial jury, and also to an impartial judge.
As Justice McKenna succinctly stated, “tribunals of the country shall not only be impartial in the controversies submitted to them but shall give assurance that they are impartial, free . . . from any 'bias or prejudice' that might disturb the normal course of impartial judgment."  Berger v. United States, 255 U.S. 22, 35-36 (1921) (citation omitted).  The guarantee of a fair trial in a criminal proceeding is two-fold; protecting the selection of an impartial jury in the first place, and prohibiting both a judge’s and prosecutor’s bias from tainting the impartial nature of that jury in the second.  In the instant case, both the partisan remarks by the trial judge to the entire venire panel, and the reaffirmation of the trial judge's partisan remarks by the prosecutor during voir dire, tainted the impartial nature of the jury.
A.
A Judge’s Comments, Prior to Selecting the Jurors,   Can Inject an Unfair Bias Towards Finding for the Government, Which is Inconsistent with the Sixth Amendment and a Defendant’s Right to a Fair Trial.
This Court has long recognized that a judge’s actions can taint a jury’s ability to be an impartial fact finder.  Potential jurors are easily influenced by the words or actions of a judge, given dependence of those jurors upon a judge for guidance in what to do and how to act.  The Eighth Circuit has aptly noted that “[a] judge’s slightest indication that he favors the government’s case can have an immeasurable effect upon a jury.”  United States v. Bland, 697 F.2d 262, 265-66 (8th Cir. 1983).  A criminal defendant’s right to a fair and impartial judge revolves around a continuum commencing at the start of the trial and continuing until the completion of the criminal proceedings.  The purpose for maintaining judicial impartiality throughout this continuum is to guarantee a defendant is entitled to an impartial jury throughout the entire criminal proceeding.  
While judges have broad discretion in conducting trials, this Court has been unwilling to allow a judge to “put his own experience, with all the weight that could be attached to it, in the scale against the accused."  Quercia v. United States, 289 U.S. 466, 471 (1933).  In Quercia, this Court was concerned with personal remarks a trial judge made, prior to charging the jury, concerning the behavior of the defendant.  Id. at 468.  The trial judge told the jury that, based on his personal experience, he believed the defendant was guilty, as proof of his actions throughout trial.  Id. at 471.  This Court was particularly bothered by such partisan remarks, and the negative effects on the jury, because the judge injected upon impressionable jury members, with all the authority of his judicial office, the added weight of his concrete assertions.  Id. at 472.  
In today’s climate, where patriotism runs high, the judge’s position of authority may cause potential jury members to accept a judge’s personal remarks that they are to uphold the government as concrete.  Just as this Court was concerned in Quercia with protecting the impartial minds of jury members from rogue judges, so too should this Court be concerned with protecting the impressionable minds of potential jurors in the courtroom, from rogue judges, before the trial ever commences.  
In the Petitioner’s case, the jury was exposed to the trial judge’s partisan and personal remarks before trial ever commenced.  Directly prior to asking those present in the courtroom to recite the Pledge of Allegiance, the judge made the concrete assertion that potential jury members have an obligation to uphold  the government, coupled with a personal and partisan story concerning soldiers dying to preserve the United States.  Prior to voir dire, in front of the entire venire panel the trial judge stated:
On September 11, I think all of us changed our notion about what is expected of us as American citizens.  .  .  .
.  .  .  .  
What we’re doing in this room this morning is what the enemies of this country want to stop.  They hate us for this.  They don’t expect the dignity of the person and they don’t respect the rule of law.  They have their own brand of god, their own brand of righteousness that condemns everyone else who disagrees with them to oblivion.  And that’s what our country is fighting right now.  And we have young men and women 18, 19, 20 years old.  One is a young man I know who is with the First Battalion of the Fifth Marines.  His name is Johnny Moore.  Johnny was a great college -- high school athlete.  Played with my son.  Johnny is now on his way to an area off the coast of Somalia with his marine unit.  And that’s where Johnny will celebrate his 20th birthday.
.  .  .  .  This kid is off to fight a war for us.  The least we can do is to uphold what he holds sacred.  He pledged an oath to support and defend the United States against all its enemies; and he expects us, you and me, to uphold the Constitution of the United States     .  .  .  .  
I didn’t do it before September 11, the Pledge of Allegiance, in the morning we begin a trial.  It isn’t that I didn’t put stock in it.  Of course, I did.  But I just didn’t think it needed to intrude on the business of the Court every time we pick a jury trial.  I was wrong.  Each of us, me included, on an occasion of this importance, needs to remind ourselves of our obligation to our country.
Would you join me now in the Pledge of Allegiance.
(Pledge of Allegiance recited.)
.  .  .  .
Is the United States of America ready to proceed?
Wonschik, 353 F.3d at 1195 (quoting Rep. Tr., vol. I, pp. 15-16).  
Much like this Court’s recognition in Quercia, that a judge’s partial remarks may “excite a prejudice which would preclude a fair and dispassionate consideration of the evidence,” Quercia v. United States, 289 U.S. at 472, so too should this Court be leary of allowing judges to make partisan remarks to potential jurors as to why they have an obligation to uphold the United States, when the government is a party in the adjudication.  In light of this Court's recognition that jurors give great deference to judge’s comments throughout trial, it is not unrealistic to find that potential jurors give judge’s comments the same weight prior to voir dire.  Base upon the rationale underlying the holding in Quercia, the NACDL asserts that partisan remarks made by a judge at the outset of a trial, can have an equally debilitating effect of prejudicing a dispassionate jury, as if the judge made the comments during or, at the end of the trial.  
On appeal, the Tenth Circuit went so far as to recognize that judges should not create an impression “that it is appropriate for the judge or the jury to favor the prosecution simply because the court and the prosecution are both institutions of the United States,” Wonschik, 353 F.3d at 1198, but failed to conclude explicitly as to whether the judge’s remarks tainted the jury before trial ever commenced.  While potential jury members may naturally be exposed to bias in the media or their own personal biases, which is often beyond the scope of the judge’s control, a judge has the ability and duty to control comments from the bench that may unfairly increase prejudice against a criminal defendant’s right to a fair trial.  
The NACDL believes that a criminal defendant’s right to an impartial jury is trampled when a judge injects personal and partisan comments into the courtroom, particularly when those comments were made just moments before requiring potential jurors to recite an oath in support of the United States,  and when the government is the prosecuting party in a criminal proceeding.  Therefore, the NACDL asks this Court to determine whether a judge’s partial remarks to the entire venire panel as to why potential jurors have an obligation to uphold the government, violates a defendant’s Sixth Amendment right to a fair trial.  
B.
A Prosecutor’s Remarks During Voir Dire, Concerning a Trial Judge’s Leading of the Pledge of Allegiance, Further Exacerbates an Unfair Bias Against a Defendant’s Right to a Fair Trial.
In the instant case, soon after the trial judge had made his partisan remarks and had led those in the courtroom in a recitation of the Pledge of Allegiance, the prosecutor compounded the bias against the defendant, by restating, and thus reaffirming the trial judge’s partisan remarks.  In the prosecutor’s opening remarks during voir dire, he stated:
Earlier this morning, we all took the Pledge of Allegiance. . . .
Before I ask you a question, did anyone  -  how many of you felt a sense of pride when you said those words again?  Just show your hands.  Don’t be embarrassed.
(Rep. Tr., vol. I, p. 106, United States v. Wonschik, 353 F.3d 1192 (10th Cir. 2004)).
Rather than magnifying the trial judge’s bias by reaffirming the partisan comments made by the trial judge concerning the Pledge of Allegiance, the prosecutor should have either remained silent or  else should have discussed with the court the bias introduced into the jury venire panel.  Just as this Court was concerned in Berger v. United States, 295 U.S. 78, 88 (1935), with the impressionable minds of jurors and the weight jurors would give to a prosecutor’s remarks, so too should the Court be concerned with allowing a prosecutor to magnify bias by reaffirming the trial judge’s partisan remarks to convict a defendant, as opposed to pursuing justice impartially.  
This Court has not addressed the specific issue of whether a prosecutor can further taint a criminal proceeding by magnifying comments made by a biased judge.  While the Tenth Circuit noted that judges should not create an impression that they favor the prosecution, the Tenth Circuit did not discuss the impact of the prosecutor's subsequent reference to these remarks.  Therefore, the NACDL asks this Court to grant review of whether a prosecutor can further debilitate a criminal defendant’s right to a fair trial, by reasserting bias and partisan remarks made by the trial judge during voir dire.  
CONCLUSION
Following the catastrophic and tramatizing events of September 11, 2001, nationalism is a strong and recognized force in daily life.  Signs of patriotism are seen on every street corner across the country, and newscasts flood viewers with alleged due process violations and unequal access to fair criminal proceedings.  In a time where great deference is given to the federal government and that government has strongly consolidated and strengthened the police power of our state, the people of this country and this Court need to remain vigilant to the fair trial rights of the individual defendant.
In order to prevent future defendants from facing the same situation that the Petitioner faces in this case, and in order to ensure that the Sixth Amendment's guarantee to a fair and impartial jury remains the "barrier to tyranny" that the Framers intended, this Court should grant the petition for a Writ of Certiorari and review the instant case.   Should this Court decline to review this case, it would send the message to courts across the nation that they are free to compel individuals in a criminal courtroom to recite the Pledge of Allegiance.  This message is particularly damaging in instances where the federal government is a party in a case and the jurors would, in essence, be swearing allegiance to a party in the case prior to trial.
For all of the foregoing reasons, the NACDL respectfully requests that this Court grant the Petition for a Writ of Certiorari.

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In this case, the selection process was impermissibly tainted by the trial judge's request that all potential jurors stand and recite the Pledge of Allegiance prior to jury selection.

PLEDGE OF ALLEGIANCE http://rexcurry.net/pledge-allegiance-pledge-allegiance.jpg FRANCIS BELLAMY

PLEDGE OF ALLEGIANCE http://rexcurry.net/edward%20bellamy.jpg EDWARD BELLAMY

SWASTIKA http://rexcurry.net/swastika3clear.jpg SWASTIKA

SWASTIKA http://rexcurry.net/swastika3clear.jpg EDWARD BELLAMY


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